Rise in contentious probate cases

By Faye Evans TEP, Partner at Churchers Solicitors.

Otherwise known as ‘contesting the will’ or, more simply put: families fighting after someone has died (most commonly over money).  2020 has been a stark reminder of how important it is to ensure our affairs are in order whilst we are well enough to do so.

Why are contentious probate cases increasingly common?

There are a couple of likely causes. The rise in house prices has meant that there is more, in financial terms, to fight over than used to be the case; people feel it is more likely to be worth their while, worth the risk of court proceedings. We also live in an increasingly litigious society. The emotional turbulence following the death of a loved one makes it even more challenging and disputes can escalate quickly, with long-lasting effects on relationships within the family.

How can I protect myself from disputes?

There is no way to guarantee there won’t be any disputes after your death, however, there are steps you can take to minimise the likelihood of this and to minimise costs to your estate:

  • Make a will – the uncertainty created when someone dies without a will makes disputes more likely.
  • Use a specialist solicitor – poorly drafted wills are themselves the subject of numerous court cases. Make sure you see a specialist solicitor, who should take time to fully discuss your individual circumstances as well as your wishes prior to drafting your will.
  • Be open and honest – if there are skeletons in your closet, family members you have fallen out with, etc. make sure you tell your solicitor. We cannot properly advise you or protect you if we are not given the full picture.
  • Talk to your family – if appropriate (it won’t always be possible, or advisable), but if your family know what to expect after your death, they are less likely to argue.
  • Leave a statement of explanation – if you are leaving someone out of your will, or doing something unexpected, explain why in a separate letter. Understanding why a decision was made can be very helpful; remember you won’t be around to explain! Disappointed beneficiaries always assume the worst, when the reasons for passing them over may have been genuine and well-intentioned.
  • Visit your solicitor on your own – never allow others to be in the room when you are giving instructions for your will, this leaves them open to an accusation that they pressured or persuaded you to draft your will in certain terms.
  • Don’t put it off! – many wills are contested because the deceased was very ill or on medication at the time of writing it. Put your will in place while you are well, able to give time to considering it and there are no questions as to your mental capacity.

If you have any questions or wish to seek advice on any issue concerning the writing of a will, management of an estate or lasting power of attorney, please call Faye or someone from her team on 023 9282 0747.

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