We continue to see an increase in advice sort from families who wish to contest wills, and this is not the home of millionaires or businesses, but work a day families.
Owner occupation and large house prices mean, that most ordinary estates are worth fighting over; acquiring some ordinary three bedroom terrace, can represent financial independence, especially in London and the South East, but it is not limited to that area of the country.
The change in the social structure has also meant that more wills are becoming contested, as the rise in blended families with children from several partnerships further raises the stakes.
In each of the last seven years there has been an increase in contested wills, where the person contesting the will (the applicant), can simply enter a £20 Caveat to stop a Grant of Probate, and begin the argument.
The financial generation gap widens. Inheritance now matters to even more people, and disinheriting the final weapon of the disempowered bold, is coming back.
In the previous website article ‘Coercion on the Person Making a Will’, in the case ‘Rea v Rea & Ors (2019)’ a notable judgment was handed down against three brothers, who were written out of their 85 year old mother’s will, because their sister was her carer.
In her last will, the lady even inserted a ‘declaration’ to explain the decision saying that despite her request, the brothers ‘did not engage with any help or assistance’, they argued ‘undue influence’ a popular plea suggesting that the deceased was not of sound mind. In this case though the judge upheld the will, (the fortune was just an ordinary house in Tooting South London, but was valued at 1 million pound).
Previously we had seen a battle between a disinherited daughter, and some animal charities. The Court awarded the woman £50,000, she appealed and got it trebled, then lost when the Supreme Court knocked it back to the original £50,000.
Another daughter challenged her father’s will, and got £30,000 for a veterinary course, on the grounds that she had tried to get the funds from him, but he kept refusing.
Disinheriting family members or indeed partners, is not as easy as it used to be. The inheritance (Provision for Family and Dependents) Act 1975, states that if there are dependents, provision must be made for ‘appropriate’ support.
However, proving dependents can be very difficult. Traditionally cohabitees can claim, as their children by former partners, if they were ‘treated as part of the family’.
It can be sometimes difficult to establish ‘Co-habitation’, often the critical evidence is that produced at the time the will was written.
In appropriate cases where there is the possibility of a contested estate, special care should be taken as to the preparation of the will, and comprehensive notes should be made as to the testator’s intentions, and the reasons why he or she is making the will as they wish. In certain cases, it is also advisable to have the testator’s doctor prepare a note, which confirms that the testator did have the mental capacity to make the will, and understand the contents thereof.
This is particularly important in certain situations, and a doctor’s note should be made available at the time of the execution of the will, in this situation affirming that the testator is of sound mind, especially if they want to benefit a carer or new partner without long estranged children, and ex-partners claiming that they were cynically manipulated.
The inheritance (Provision for Family and Dependents) Act 1975, has moved the issue away from the certainties of law, into the cloudier zone of ‘equity’, this being a general concept of fairness, which may not on the face of it co-inside with the dead person’s opinion.
There is a procedure for such claims within the act, but that is not part of this article.
We cannot see a slow-down in the claims against estates, and it is therefore very important in considering and making a will in such circumstances, that all relevant notes should be taken, and in particular the reasons for any changes in the wills, or indeed why a testator wishes to excluded family members, or members who would be entitled to share in the inheritance.