Inheritance fights are up 80% – here’s why and what to do if it happens to you

Inheritance disputes within families have jumped in the past five years due to changes in how and where we live, according to lawyers, who warned of the urgent need for people to get their affairs in order to avoid a fight later on.

Nearly eight out of 10 (78%) lawyers specialising in helping people in later life say they have seen an increase in contested will cases since 2021.

Approximately 10,000 individuals contest wills annually in England and Wales.

Try 6 free issues of MoneyWeek today

Get unparalleled financial insight, analysis and expert opinion you can profit from.

Start your trial

Sign up to Money Morning

Don't miss the latest investment and personal finances news, market analysis, plus money-saving tips with our free twice-daily newsletter

Don't miss the latest investment and personal finances news, market analysis, plus money-saving tips with our free twice-daily newsletter

Sign up

This figure could rise further with new complexities around inheritance tax rules, which will see pensions included in the estate for IHT purposes from 2027. On the other hand, a well drafted will can help reduce the inheritance tax bill your loved ones pay.

Many recent disputes have been driven by unequal distribution between children, blended families’ dynamics, poorly drafted DIY wills or no will at all, the Association of Lifetime Lawyers, which surveyed 115 solicitors, found.

The majority of lawyers (91%) said their clients are generally surprised by the legal consequences of an outdated or missing will.

Emma Bryson, board director at the Association of Lifetime Lawyers and a senior associate in law firm Michelmores disputed wills, trusts and estates team, said: "Modern families are changing fast, but the legal documents meant to protect them aren’t always kept up to date.

“People often assume everything will be obvious to their loved ones, but that’s rarely true. The reality is, without a will, or – even with one that’s out of date - confusion and uncertainty about someone’s wishes can quickly turn into painful inheritance disputes."

Ahead of Free Wills Month in March, we look at why you should write a will and what happens when inheritances are fought over.

3 key reasons why wills contested

Estates and wills are being contested more often in recent years due to three main factors, according to lawyers; the rise in cohabitation, older children still living at home with parents, and a rise in age-related mental health conditions like dementia.

1. Increased cohabitation

More people are choosing to cohabit rather than marry, preferring to spend money on getting on the housing ladder rather than having a wedding. The problem is, sharing assets without being legally wed doesn’t give you a strong claim to the estate of a deceased loved one.

Bryson said: “Rightly or wrongly, the current law provides protection for spouses of a deceased's estate. The same protection does not exist for unmarried couples.

“This rise in co-habiting couples has led to an increase in situations where a partner dies without a will, and the surviving partner has no automatic legal entitlement to their estate (which may include the whole or a share of the property).”

This gives rise to a claim by the cohabitee under the Inheritance (Provision for Family and Dependants) Act 1975.

2. More adult children living at home

Another reason for an increase in disputed estates is the current economic situation, with millions of adults still living at home with their parents.

“With the cost-of-living crisis continuing to bite, people are increasingly reliant on their parents' estates for housing or financial provision, meaning an increase in claim by adult children under the Inheritance (Provision for Family and Dependants) Act 1975,” said Bryson.

3. Age-related illness

An increase in will disputes is also due to an ageing population with increasing care needs, on the basis the person whose will it is lacked mental capacity when they wrote their will.

This is an increasing problem – by 2030, the amount of people in the UK with dementia is expected to increase to over 1 million people, according to NHS England.

“People are living longer, but many will experience dementia and other illnesses which affect the capacity to make a will. People making wills late in life whilst unwell, or without professional assistance, gives rise to probate claims,” said Bryson.

Tips on how to prevent an estate being contested

Making a will is incredibly important, however each set of circumstances is unique – and there is no golden bullet which ensures that an estate cannot be contested.

“There are, however, a number of things which can strengthen a will and provide more protection in the event that someone wishes to challenge a will or bring a claim against an estate,” said Bryson.

1. ‘No contest’ clauses

If a person anticipates that inclusions or omissions in their will might be controversial, they might wish to consider including a 'no contest' clause in the will.

“A no-contest clause is a provision designed to deter beneficiaries from challenging the will's validity or bringing a claim against the estate by stipulating that any challenger forfeits their inheritance if they do. It can act as a financial deterrent to prevent costly litigation and enforce the testator's wishes,” said Bryson.

2. Capacity assessments

If someone has suffered with mental illness or is elderly, it is wise to ensure that their will is witnessed by a medical practitioner who can attest to their capacity to execute a will at the relevant time.

Bryson said: “In this scenario a formal capacity assessment should also be carried out on the person making the will to confirm that they have capacity to do so. This capacity assessment can then be used as evidence should anyone seek to contest the will after the person making the will has died.”

3. Use a solicitor

It is possible to write and prepare a will yourself, but it can be wise to consult a professional to avoid errors and omissions.

“Not only does the will appear more professional, but the solicitor who has prepared it should also prepare and keep a corresponding file which evidences what the deceased person wanted the will to include, the decisions they made and their reasons for making a will through attendance notes and correspondence,” said Bryson.

“If correctly prepared, this evidence is a strong shield to someone who wishes to attack the validity of a will,” she added.

How to successfully contest an estate

If someone has died and you wish to contest their estate, the first step is to contact a specialist contentious probate solicitor.

After obtaining information from you they will then be able to assess whether there are any questions to be answered or if a challenge to a will or claim against estate would have good prospects of success.

Bryson said: “The success of a will challenge will depend on the merits, any evidence from the time the will was made, and how well the claim and pre action correspondence is prepared.”

The success of a claim under the Inheritance (Provision for Family and Dependants) Act 1975 depends on a variety of factors, including, but not limited to:

• financial needs/resources of the claimant and beneficiaries
• the estate's size
• the deceased's obligations

“It will also likely depend on how well the claim and pre action correspondence is prepared, which is why legal advice early on is crucial,” Bryson said.

Finally, alternative dispute resolution mechanisms such as a formal mediation are common in practice and Bryson said “are a useful tool” for formally resolving disputed estates without court action being necessary.