Arguably the most sensitive of disputes, contested Wills have seen a sharp rise in volume over the last few years, with the number of cases heard at the High Court reaching a record high of 188 in 2019.
Thought to be attributed to rising house prices and increasingly complex circumstances surrounding marriage and divorce, the number of challenges to Wills being brought forward to be heard by a judge is just the tip of the iceberg. Beneath the surface are those being settled outside of court or abandoned before they can reach this point.
With figures already at record levels, experts in Wills and Probate law now suspect a further increase in contested Wills as a result of the Coronavirus pandemic that swept the globe in 2020.
The theories driving these predictions around contested Wills are many – namely, that financial downturn will leave people without a reliable source of income as redundancies reached their own record high of 314,000 in September. Desperate times call for desperate measures, and any chance to secure at least a small piece of the pie will be taken by those at rock bottom by no fault of their own.
There’s also no avoiding the obvious point that the pandemic has caused an unprecedented spike in deaths during the course of the year. From the 50,000 who have tragically lost their lives due to Coronavirus related causes and the estimated 15,000 excess deaths, it’s fair to say that many who died this year were not as prepared as they may have been in other circumstances. Many of these people, particularly the elderly, will have had a Will in place – but whether it was in need of updating to reflect current circumstances is another question altogether.
Then there’s the effects of lockdown, which have undoubtedly fractured certain relationships. These are strange times, and everyone has faced their own struggles as a result of the pandemic. However, with families disconnected from each other, there’s the possibility that changes were made to Wills based on how relationships have developed over the last nine months. Being removed or left out from a Will as a result of poor communication over this period is understandably frustrating for those who have been facing their own issues, so it’s not hard to see how disputes could spark on this basis.
According to an article published by YourMoney, delayed weddings will also play a major role in the steep rise of contested Wills. One study from a London-based wedding planning app revealed that 64 percent of weddings in 2020 would be affected by postponements, cancellations and travel restrictions. These aren’t just young people, either – there are plenty of couples whose weddings would have been their second or third. For more aged couples, experts warn that these postponements could cause serious problems if one of the couple dies, leaving their intended partner with no legal claim to their estate since they were unable to get married and no Will was put in place or updated accordingly.
Issues may arise if there are complex circumstances and family ties, such as children from previous relationships. One workaround suggested by experts is to draw up a cohabitation agreement or a Will prepared ‘in contemplation of marriage’ which would not need to be updated again once the couple were married.
Another concern is that Wills signed through windows or video calls may result in questions surrounding capacity and undue influence. Having launched our own V-Sign service in response to the restrictions on face to face meetings, we maintain that this system was designed with compliance at its core and specifically to remove any doubts around undue influence. Of course, there’s no guarantee that all practices abided by the legislation around video witness signing Wills that was rushed through parliament in late September. Further, the panic caused by the pandemic may play a leading role in contested Wills claims in the coming year, with those left out citing a rush to protect assets in unforeseen circumstances clouding the minds of those creating their Wills.
Legal challenges to Wills can take many forms such as claims under the Inheritance Act 1975. Lack of capacity is one of the most common reasons cited by claimants, as are errors in the way a Will was prepared. In the Wills, Trusts and Estates community, it is believed that another key driver of contested Wills is the distance between family members, which has historically resulted in testators prioritising friends, carers or charities close to their heart. The pandemic may see an increase to such cases, whereby testators feel their family members are affluent enough and that the money would make more of a difference to those in need, or those more deserving. A phone-call from a relative every couple of weeks compared to constant companionship given a carer often does not equate in the eyes of the testator.
These legal disputes are stressful at best and harrowing at worst. The reasons behind such claims are often justifiable, but action must be taken now to limit the number of challenges that result in lengthy, expensive court cases. Preparing a Will is something that many put off out of discomfort, but in a health crisis in its second wave, it’s never been more important. We recommend seeking legal advice from a specialist solicitor as soon as possible, as homemade Wills can often lead to errors that undermine the validity of the Will, or poor judgements. Issues could also arise whereby the formal process for preparing a Will has not been adhered to, such as a lack of witnesses to observe the signing of the Will. The more problems such as these, the greater the chance that the document will be challenged – for example, if it favours certain family members above others. Communication with beneficiaries ahead of the creation of the Will is paramount in managing expectations, which can be done by way of ‘letter of wishes’ which explain the reasoning behind decisions set out in the Will. If everything is made clear well in advance, there is less room for misinterpretation or nasty surprises and therefore, less risk of a courtroom battle when the testator passes away.
If you are preparing your Will, our specialist Wills, Trusts and Probate lawyers are ready to assist you with expert advice and support in estate planning. Get in touch with our team via the quick contact form below or use our online chat function to arrange a free consultation at your convenience.
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