Surge in Inheritance Disputes – Exploring the Rise in Conflict within the Courts of England & Wales

Introduction 

Recent articles in the national press have identified the ever increasing number of claims being made in the Courts challenging peoples estates.

The purpose of this blog is to consider some of the reasons for the significant increase in contentious probate disputes and consider the impact on the parties involved.

Specialist contentious probate solicitors estimate that as many as 10,000 people in England & Wales are engaged in a will dispute every year. The number of disputes proceeding all the way to trial, normally an incredibly small percentage of the total number of disputes, increased by 35% from 2017 to 2022. 

Any dispute where parties are having to engage litigation solicitors comes with inevitable stress. When the dispute involves a deceased’s estate the emotional toll is often enhanced. This is because the issues surrounding the dispute are likely to be highly emotive as the parties involved are often family members.  

Litigating a probate dispute is inevitably costly. It will require an analysis of a lot of documentation, potentially require expert evidence as well as Court fees and barristers fees.

Despite the high emotional and financial cost of disputing a will, the number of such disputes is only increasing.

The Numbers and Causes

In more recent years the “traditional” family unit has become less common place. The stigma of separation and divorce barely exists. Accordingly the family unit often includes second marriages, partners living together who are not married as well as step children and half siblings. All of these relationships do give rise to complications when people are considering how to gift their assets in their will. It is understandable that people feel conflicted between gifting blood relatives such as children with the desire to provide for future generations as against the legal and / or moral obligation to gift assets to one’s life partner.

The above reasons are only one side of the coin. Another major factor for the increase in such claims is the increasing wealth of the baby boomer generation. They themselves may have inherited wealth from their parents. In addition, the impact of property prices over the last 30-40 years cannot be understated. It has resulted in many estates of what would be considered people of “average means” now being significant – particularly in the Southeast and London regions.

An additional factor is the rise in the life expectancy in the UK. In 1960 the average age of death was 70. By 2020 it was 81. However, as everyone is sadly aware this increase does not necessarily correlate with an improved quality of life. The incidence of Alzheimer’s and other forms of dementia is on the increase. Medical knowledge has also obviously improved over this period. Accordingly, challenges on the grounds of a lack of mental capacity have become a significant factor as one of the causes for the rise in contentious probate disputes. 

Finally, a very specific issue around will drafting arose with the Covid pandemic. A lot of people were very anxious to put their affairs in order and wanted to prepare a will. However, the social distancing rules ran diametrically opposite to the requirement that a will should be correctly witnessed. Retrospective legislation allowed for wills to witnessed virtually during the period of Covid. However, there are and will continue to be cases where the compliance with the formalities of “due execution” will be a very live issue for wills dated during this uncertain period.

The Effects of Inheritance Disputes

Once a party, normally a relative of the deceased, instructs solicitors to send a letter to “the other side”  the lines of battle become drawn very quickly. Other members of the family are often drawn into the dispute and everyone has an opinion as to who is right and more particularly who is wrong. Furthermore, the other side will often tend to instruct solicitors, which is a sensible thing to do, and thus the costs begin to be incurred.

In view of the very nature of these disputes, the arguments that are deployed are sometimes bordering on incredulous. I have for example experienced parties arguing as to whether a surviving partner properly looked after her long time partner by querying that she only made sandwiches for lunch. On another occasion, an executor threatened to loosen the wheel nuts of the deceased’s car before delivering it to a beneficiary!

One of the biggest causes of inheritance disputes continuing is when a party believes that they are morally justified in doing so in order to uphold the deceased’s wishes. The very existence of a dispute coupled with the certainty that a particular outcome cannot be guaranteed highlights the absurdity of adopting such a position. Never the less, I suspect every solicitor who practices in this field has heard this argument. It is incumbent upon the advisor to ensure that the client is aware that adopting such a moral position could come at a very high price. 

Seeking Legal Advice

Having identified the increase in the incidence of probate disputes, some of the reasons for this, and the impact you may wonder the purpose of this blog save for making you cynical and miserable.

Notwithstanding the very sensible and realistic warning on costs, it is clear that obtaining sound legal advice when considering whether to challenge or defend a will is money well spent.

You will want to receive advice that of course addresses the fundamental issues in dispute but also provide you with a commercial analysis of the merits of the dispute – what is in dispute, what evidence is in existence to address the issues in dispute, what will it cost to proceed to a mediation and / or to trial?   

Conclusion

In view of the causes of the increase in probate disputes it is extremely unlikely that the number of disputes in this area will decline.

It is important when making a will that it is done professionally. This is to reduce the risk of your will being challenged.

You will also receive advice on who could have a potential claim and armed with that knowledge plan accordingly.

One of the most valuable commodities in life is knowledge. Obtaining legal advice before you make your will as opposed to when you are challenging or defending one is always more cost effective and will give a greater certainty of outcome.

If you would like further information please contact our Contentious Probate team.