The Ever Increasing Rise In Will Disputes

According to recent research published by The Times, High Court claims for Will disputes in England and Wales have grown by more than 20 per cent over the past 12 months. This is likely be the tip of the iceberg as the vast majority of disputes are settled well before they ever reach a Court hearing.

These disputes can often mean huge legal fees to resolve, significant delays (sometimes years) in finalising estates and emotional heartache for the family that can be ripped apart through warring factions.

It is often said that the primary factors behind the rise in claims are identified as 1. An increase in the number of blended families – where partners have their own children and another child or children from a previous relationship – and 2. Escalating property and investment portfolio values.

With regard to the first factor, this is perhaps of no surprise, the increasing prevalence of blended families arising from people living longer, having relationships in later life, more remarriages, an increased number of cohabitees, more stepchildren, adult children living at home, and other evolving trends.

Similarly, regarding the second factor, as estates continue to increase in value from rising property and investment portfolio values, this fuels the potential for disputes to arise. 

It is also well recognised that many claims can also involve allegations of executors failing to act in the best interests of the beneficiaries, often by distributing assets of a deceased person against the terms of the Will.

However, there are many other reasons why a Will might be subject to dispute. Let’s explore a few:

Inaction by executors

The role of executor carries a great responsibility, and some may be unable or reluctant to deal with the legal, financial, and administrative issues around probate – sometimes estate funds might even be used as if they have already been inherited.

Lack of understanding

People are often unfamiliar with their role as executors, and their primary responsibility is to the beneficiaries, with their duty to carry out the terms of what the Will says, not what they think it should say.

Family executors

There are many Wills including homemade Wills in particular, in which people appoint their closest family members as executors, rather than professional executors.

Wills not being updated

Failure to update Wills to allow for changing circumstances is all too common e.g. even deceased executors, and homemade Wills may not include a substitute executor.

Probate delays

These can lead to property maintenance costs and expenses – potentially for a long time. Executor’s expenses can be a point of dispute, particularly if the executor is living in the property but doesn’t inherit and not paying rent.

Property problems

For example occupying a property as part of an estate for distribution – cohabitees, spouses or adult children – who do not want to leave. In this context, executors may have to take possession proceedings against them.

Moral views

Particularly if there is a departure from the traditional, customary or expected position of inheritance within the family. Disputes relating to Wills and estates can be further exacerbated by an executor who is also a beneficiary, as a potential conflict can exist between the two roles that can be hard to separate. Executors must be neutral, whereas beneficiaries have a vested interest, so people can get into difficulties when trying to juggle the two roles. So careful thought should be given to who is appointed as an executor in a Will, and considering an independent professional who enables the estate to be administered in accordance with testator’s wishes may ultimately save on legal costs.

Warring executors can also ask the Court for directions on how to administer an estate or agree to appoint an independent administrator in their place. Executors should be aware that they can be removed or replaced and asked to repay any expenses. Similarly, if they do not seek appropriate indemnities, they could be personally liable for the costs of legal proceedings brought by, or against an estate.

Looking at all the contributory factors, the ongoing increase in disputes seems likely to continue rising in the future. Those who find themselves involved in a dispute should always seek independent legal advice and it is usually more cost effective to get expert advice as early as possible.

At Harold Stephens we are in the enviable position that we can guide you through your later life, both financially and legally. This means that we help clients in lifetime (with their estate/IHT, investment, pension and care planning as well as Wills and LPAs) and then importantly we ensure your wishes are carried out after your death (Will and Probate and liaising with beneficiaries).

We are here for you throughout your life and beyond ensuring that the disputes and delays we have talked about today are kept to an absolute minimum.

Please call 0117 3636 212 or email office@haroldstephens.co.uk if you would like to arrange an informal chat about your circumstances – we’re here to help.