At least 10 years ago we predicted that more wills would end up being contested. Granted, it’s hardly a prophesy worthy of Nostradamus: greed and envy have been around since time immemorial.
And it gives us no pleasure to have been proven correct. But what is perhaps a little surprising is the fact that these disputes have risen by around 40% in the last four years. Some 9,625 wills were disputed in the 2022/23 tax year.
Experienced probate solicitors like us put the rise down to three main factors: rising property prices, remarriage creating more blended families, and the plethora of celebrity will disputes that have publicised the issue.
Furthermore, a Court of Appeal decision back in 2015 also paved the way for challenges of even supposedly clear-cut wills and their accompanying instructions. This makes getting the right legal advice more important than ever.
The reality is that we are living in a much more litigious country than was once the case. But while people are now more likely to challenge a will than in the past, it can be a hugely expensive process.
Despite this, I have seen several cases in which warring families with personal vendettas have insisted on litigating – notwithstanding the dramatic costs of bringing and defending proceedings in the High Court.
The reality is that few cases actually make it to court. But don’t be lulled into a false sense of security. Plenty more cases were settled out of court. They would have been resolved by way of a negotiated compromise following the threat of legal proceedings.
Against this background of conflict, it becomes ever more important to seek professional help when making a will. A specialist wills and probate solicitor can help you to minimise the possibility of a legal challenge.
These days, modern families are more likely to be complicated so seeking professional legal advice about wills is even more essential now than was the case 30 years ago. I first started work as a trainee solicitor in August 1994, qualifying in 1996, so I can comment with some authority and experience here.
DIY or template wills that you download from the internet are always likely to be more prone to challenge. So it pays to engage the services of an experienced solicitor who specialises in wills and probate. Professional advice ensures that your last will and testament is drafted in full accordance with all the legal requirements, reducing the likelihood of challenges.
Someone creating a DIY will may lack a comprehensive understanding of the legal requirements and formalities necessary for the document to be valid. Legal nuances, witnessing requirements and other formalities must be adhered to – and a failure to do so can render the will invalid or open to challenge.
DIY wills may also suffer from ambiguous language or poor drafting. This can lead to confusion about your intentions as the testator (the person making the will). Ambiguities in a will can be fertile ground for disputes among potential beneficiaries.
These wills may also lack proper safeguards against undue influence, coercion or manipulation, as they often lack independent witnesses. This increases the risk of challenges claiming that the testator was not acting of their own free will.
It is also important to note that the law surrounding wills and probate can and does change over time. DIY will creators may not be aware of recent legal developments – potentially leaving their template wills outdated or vulnerable to challenges based on changes in the legal landscape.
Ensure that your will is witnessed by two independent individuals who are not beneficiaries. And just to be safe, make sure they are not closely related to any beneficiaries. This helps to establish the validity of the will, reducing the risk of claims based on undue influence or coercion.
Members of our legal team can act as your witnesses if required. This ensures complete objectivity and compliance with all the legal procedures involved in signing and witnessing the will.
Consider including a no-contest or forfeiture clause in the will. This provision stipulates that any beneficiary who challenges the will stands to forfeit their inheritance.
While not foolproof, it may be a useful deterrent.
Ensure that you have the mental capacity to make a will (and can prove it). This is a crucial factor in avoiding challenges. Lack of mental capacity is one of the more common grounds on which the validity of a will can be challenged.
Consequently, some testators may need to consult a medical professional who can provide evidence of mental capacity at the time the will was being drafted.
Mental capacity matters for obvious reasons – a valid will requires the testator to fully understand the nature and effect of their actions at the time of drafting the document.
It is essential to ensure that the testator is making decisions of their own free will, without being incapacitated or unduly influenced or coerced.
In England and Wales, the Mental Capacity Act 2005 sets out the legal framework for determining whether or not an individual is capable of taking decisions. To create a valid will, the testator must understand the nature of the will, the extent of their estate, and the consequences of their decisions. Failure to meet these requirements may render the will invalid.
For expert legal advice, contact Coles Miller Partner Anthony Weber, Head of the Wills and Probate Department. He has three decades of legal experience, specialising in wills, probate, living wills, administration of estates, powers of attorney and dealing with the Court of Protection and the Office of the Public Guardian.
Tony is a member of the Law Society’s Private Client Section (formerly the Probate Section). He is also a member of the Association of Lifetime Lawyers, formerly known as Solicitors for the Elderly. It is a national organisation of 1,500 lawyers dedicated to helping older and vulnerable clients.
Tony is also on the steering group of Broadstone Stepping Stones, a Dementia Friends group. He is based at Coles Miller’s Fleetsbridge office.