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Statistics published by the Ministry of Justice in December 2023 showed that the number of contested Wills in England and Wales has risen by 34% in the last five years. In 2021 to 2022, 195 Will disputes were heard in Court, up from 145 in 2017 and a mere 80 in 2012. It’s worth pointing out that this is likely to be the tip of the iceberg since the majority of Will disputes are settled out of Court.
People are now generally more aware that it’s possible to challenge a Will and, unlike previous generations, seem less inhibited in doing so.
So what factors in our society are driving the increase in Will challenges? Demographics are key; the property-rich, mortgage-free baby boomer generation are passing down significant wealth of a value unknown to previous generations. With a cost-of-living crisis and young adults struggling to get onto the property ladder, it’s no surprise that more people are challenging Wills. When the stakes are so high and they need more money, some might consider the prospect of upsetting other family members and beneficiaries well worth the risk!
We also have an ageing population with rising numbers of dementia diagnoses which in turn is increasing the number of claims in relation to lack of mental capacity. Solicitors are regulated and are under a duty to ensure that a client has the capacity to give Will instructions and, if they are in any doubt about cognitive decline, will require an independent assessment of capacity prior to taking instructions. These capacity assessments come at a cost, but they are a lot cheaper than the cost of defending a legal claim. At the bargain budget unregulated end of the will-writing market people may be reluctant to add in this extra cost which may give rise to claims in the future.
COVID has undoubtedly played its part in the increase in Will disputes and may continue to do so in the years ahead as those who executed Wills during COVID pass away and their loved ones discover the contents of their Wills.
Large numbers of homemade Wills were drafted during lockdown as people rushed to put their affairs in order. These may or may not have been properly executed, so if you are in this situation, you would be well-advised to seek advice from a specialist Will solicitor to stave off the possibility of future claims.
Also during lockdown many elderly people were isolated from their wider families and became dependant on a carer or on one family member who may have had the opportunity to exert influence over decisions as to who should inherit their estate and to poison their mind against certain family members. It is common for Wills to be challenged due to undue influence, which is when the testator (person making the Will) has been coerced into changing their will or ‘want of knowledge and approval’, when they were unlikely to have known or approved of the contents of their Will.
Finally there is a general increase in the number of second or subsequent marriages which increase the risk of stepchildren or children being dis-inherited.
As people marry later in life they are also at risk of predatory marriages where the new spouse takes advantage of their newly wed’s declining cognitive function and persuades them to change their Will. It is also worth noting that when you marry in most circumstances, an existing Will is automatically revoked.
Whilst all of these factors might give cause for concern, there are things that you can do to ensure that your wishes are carried upon your death. Having a professionally drafted and executed Will is the first step and you can also attach a letter of wishes to explain exactly why you have made particular decisions with regard to your inheritance. It won’t stop a disgruntled from making a claim but may assist greatly in defending that claim.
If you think that a loved one may have been subject to undue influence in some way with regard to their Will or they may have lacked capacity at the time the Will was drafted, seek legal advice sooner rather than later.
Kax Chana
Solicitor – Will & Estates Disputes
