Inheritance disputes within families have jumped in recent 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.
Approximately 10,000 individuals contest wills annually in England and Wales.
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.
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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.
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“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 The reality is, without a will, or – even with one that’s out of date - confusion and uncertainty about someone’s wishes can quickly turn into painful inheritance disputes."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.
