24% would contest a will: the avoidable & costly route to resolution

A recent poll by Direct Line suggested that 24% of UK residents would contest a loved-one’s will, if they were unhappy with the division of assets. Claimants made over 8,100 applications to halt probate in 2017. That figure increased by 6% last year.

The idea of freedom of testation has deep roots in English law. In the 1990 case of Re Coventry, Mr Justice Oliver famously restated the position, saying “an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases”.

In more modern parlance, the European Convention of Human Rights, at Protocol 1, Article 1, asserts that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”. A corollary of this fundamental right is the ability to dispose of those possessions as you wish.

When disputes about wills do arise, the deceased cannot clarify their intentions, for understandable reasons. Consequently, the legal grounds for challenging wills are narrow. They include a lack of testamentary capacity, lack of valid execution, undue influence, lack of approval and fraud.

Rectification and construction claims can be made where a clerical error or a failure to understand the wishes of the testator is alleged. The Inheritance (Provision for Family and Dependants) Act, 1975 also enables a spouse, former spouse, civil partner, child or dependent of the deceased to challenge a will, if they believe they have not received reasonable provision.

Clients often say that money has little to do with their desire to challenge a will. They say it is a matter of principle. The death of a loved one is a fraught time. If someone feels slighted by the provisions of a will, they often feel emotionally driven to see it altered.

Unresolved relationship issues between the claimant and the deceased can play a role. Long-festering disputes between siblings can come to a head during the execution of a will. At root, the dispute is often fundamentally emotional, rather than legal or financial. Yet the crude machinery of the law is brought into play.

There is little to disincentivise the initial challenge of a will, since the cost of issuing a caveat is only £20. If a negotiated settlement cannot be reached after a caveat is issued, the only option is to issue a claim in the Chancery Division. At this point claimants become more cautious. Not least because the court fees to bring such claims are 5% of the claim amount for claims between £10,000 and £200,000. For claims over £200,000, the court fee is £10,000. That is before legal fees are even considered. Legal costs may be awarded against an unsuccessful claimant. Clearly, an emotive “point of principle” could prove very costly for a claimant – and for the estate of the deceased.

A few pertinent questions by lawyers when drafting wills could help avoid many such disputes. Parents often name all their children as executors in their will, even knowing that they do not get along. The key question is perhaps, “Will they get along well, even they are upset and grieving?”

Lawyers should always check with clients whether the individuals they are naming as executors get on with each other, whether they are relatives or not. This is vital since decisions by executors must be unanimous.

It is also important to know whether proposed executors get on with a client’s family members and beneficiaries. If not, this can cause significant loss and delays in the administration of the estate when disputes emerge. These may occur if, for example, personal effects are being distributed at the discretion of executors, and they give little or nothing to a person they dislike. Even if an executor acts impartially, the mere perception of bias increases the likelihood of a dispute.

Lawyers should carry out some due diligence on the proposed executors. A few probing questions may help reveal whether they are appropriate and of good character. It is surprising how often lawyers do not consider this point, even though improper actions by an executor can expose an estate to litigation.

To help clients avoid disputes over their estate, non-contest clauses in wills are a useful tactic. These state that a beneficiary will forfeit their interest in the estate if they challenge the will. They are not bulletproof, but they help dissuade challenges. Trusts can also be used to ease the variation of a will. Such clauses are particularly advisable where a testator believes a family member or cohabitee is likely to challenge a will.

As lawyers, we have an ethical duty to act in our client’s best interests. This obliges us to help protect client’s estates from later challenge. This protects client’s assets and prevents them from leaving a bitter legacy of litigation and family discord behind them.

Published in Lawyer Monthly – 8.4.19