Where there's a will there's a way

Gavin Faber, Partner and specialist in contentious probate, reviews the unprecedented increase in the number of disputes over wills.

It may be because people are more litigious-minded or perhaps the value of estates has been increasing, making it worthwhile to fight over the assets. Whatever the reason the courts are finding themselves faced with increasing numbers of claims.

The starting point is always to bear in mind that a person may leave what they want to whom they want.   It is not for the courts or the state to dictate what should happen when you die.  However, there are certain circumstances where the court will intervene.

It may be that you are a disappointed beneficiary where limited provision (or no provision) is made for you under a will (or under the rules of intestacy where there is no will).  Providing you fall within a certain category, most commonly spouses, civil partners or children of the deceased you may have a right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  This Act gives those individuals who are financially dependent on the deceased the possibility of obtaining financial provision from the estate.

Alternatively you may wish to dispute the validity of a will. This may be because it has not been validly executed by the deceased. There are strict requirements on how wills need to be prepared and executed and with the large quantity of home made wills that are now being produced often individuals fail to comply with these essential requirements.  You may consider that at the time of entering into the will, particularly when it is shortly before death, the deceased lacked capacity and did not understand what they  were doing.   The will may not reflect the deceased's wishes. For example, an elderly relative may be placed under pressure from family members or a malevolent carer to make a will in a particular way.  

Another possible problem that can arise is where it is clear that the wording of a will does not in fact reflect what the deceased intended. This most commonly occurs where there has been an obvious clerical error or there has been a failure on the part of the will draftsman to understand the instructions.  In those circumstances it is possible to rectify a will.

It is not uncommon for disputes to arise in the administration of the estate. It may be that a beneficiary feels that the estate is not being dealt with properly by the executors. Alternatively the executors themselves may fall out. There are a large number of possible actions that can be taken in these circumstances. 

It is always sensible to take advice if in any doubt.

For further details, please contact Gavin Faber, a Partner in the Dispute Resolution & Litigation team on 01384 364139

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