Families are going to war over wills (Image: Getty)
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More bereaved people than ever are contesting wills – but taking the dispute to court can end in financial catastrophe.
Reasons include that families tend to be more complicated than they used to be, with more people divorcing and remarrying, and the rise in property prices means there is often far more money at stake.
With emotions running high after the death of a family member, all sorts of simmering resentments can rise to the surface. But digging your heels in and stubbornly demanding your day in court could leave you hundreds of thousands of pounds out of pocket, experts warn.
“Wills disputes are not only about whether the will is valid or not,” says Paul Hewitt, a partner in the trust, estate and inheritance disputes team at Withers.
“It might be because of broken promises or because the will makes insufficient provision for a child or cohabiting partner. Sometimes one child will have helped their parents out financially.
“There’s been a definite and significant increase in wills disputes. When I started out 22 years ago, only a handful of people specialised in this area but now there is an association of contentious probate lawyers with several hundred members.
“The press has played a role as well by giving more coverage of inheritance disputes, which makes more people aware they can challenge a will. People used to think ‘that’s not fair’ and leave it at that, but now there is a greater willingness to do something about it.”
The emotional aspect is “pretty critical. Grief makes it very hard to act rationally and see the other point of view, especially if there have been years of pent-up resentment,” Paul says.
“It’s this inability to see the other side that’s really dangerous, if a person can only see why they’re right, because the judge might think both sides are telling the truth but they have to decide the case.”
During his career, Paul has come across a pair of millionaire brothers, both in their fifties, who loathed each other. Their list of grievances, intended to be included in legal documents for a lawsuit, began with the accusation that one threw a snooker ball at the other when they were aged three and seven years old.
In another case, a mother wrote a will leaving everything equally to her three children. One of the daughters, who resented her brother’s success, persuaded the mother to disinherit him in a second will. When the mother died, however, the other sister sided with the brother to challenge the will. The court ruled the mother had lacked capacity at the time of the second will and the sister, rather than inheriting one third of her mother’s estate, ended up with nothing (as well as a huge bill for legal costs).
Legal challenges can be brought on several bases, for example, the mental capacity of the person making the will, that a dependent or relative was not catered for, technical errors in the will paperwork or that the person making the will was put under pressure by beneficiaries (known as “undue influence”) or wrote the will under duress.
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Fortunately, for reasons Paul explains, the vast majority of probate disputes don’t go all the way to trial.
“What I always remind clients is that the key witness has passed away,” he says.
“No lawyer will ever tell you that a probate case is 100% fireproof – it never is.”
Going to court is expensive. To take a probate dispute to trial will cost six figures “at least, and very often multiples of that”.
And one common misconception, as Paul points out, is that the legal costs come out of the deceased person’s estate. In fact, although the judge has discretion in awarding costs, the general rule is that the loser picks up the bill for both sides. That’s the court fees and legal costs for lawyers and the cost of any evidence produced or expert witnesses.
You may be able to get insurance for this, if the insurer thinks your case is strong enough to justify the risk, but that’s an extra expense.
Some lawyers may take a case on a ‘no win no fee’ basis but will charge an uplift on their fees if you win. Say the lawyer costs £120,000, and you have to pay a 50% uplift, that means you’re paying £180,000 to your lawyer even if you are victorious.
To spare your family this ordeal, Paul suggests that parents speak to their children about their will, even if it’s a difficult conversation. They might want to explain, for example, that they are choosing to leave more to one child because that child is less well off than the others, or they want to recognise the extra caring responsibilities taken on by one of their children. That way, it won’t come as a shock further down the line.
Another tip is to make a list of your personal possessions, setting out who should get what. Paul’s own parents did this after listening to his horror stories from work. While such a list is not legally binding, it does make things clear and takes the emotion out of what can be an extremely personal matter for people.
Finally, if you feel a will is unjust, make sure you go to a solicitor who specialises in contentious probate or in trusts and inheritance. They are best placed to give you sound advice and will have experience in dealing with the highly charged emotions that can come to the fore.