Irwin Mitchell | Focus on Wills, Trust, Estates and Disputes | A day in the life

What types of trust and probate issues are most likely to turn contentious?

Disputes can arise in respect of any aspect of trust and estate administration and as such the types of disputes we deal with are extremely varied.

The main type of Will and probate matters that come across my desk involve a challenge to a Will on the grounds of lack of testamentary capacity. This is an inevitable consequence of an ageing population and better diagnoses of medical conditions. Disappointed beneficiaries will often assert that the Testator lacked the ability to understand what he was doing. It is rare to see medical records that do not make some reference to “confusion” in an elderly Testator. As we all know, this does not in any way conclusively mean that he did indeed lack testamentary capacity but it will fuel the allegations. I also find that a number of clients assert that a testator was subject to coercion, exerted by a family member or carer. It is fair to say that people are far more likely to be assisted by carers and non-family members which means that there is wider scope for abuse. However, it is also the case that as an elderly person becomes more dependent on these people, strong relationships can quite innocently develop. This can often lead to a dramatic change in Will instructions which although on the face of it appears of concern, can easily be explained.

In addition, we are commonly advising individuals in family provision claims, particularly where the Testator has failed to leave a Will. This can be particularly problematic where they were co-habiting and the co-habitee receives no, or limited, benefit from the estate.

Further, with the growth in the number of lay executors and administrators carrying out DIY Probate, there appears to be an increase in the number of beneficiaries that are concerned about the administration of the estate. I find that I carry out an increasing amount of work in trying to ascertain what work has been undertaken in the administration of the estate, and whether an executor or administrator has breached his duties to the beneficiaries.

Recently it seems there has been a noticeable rise in the number of Will and probate disputes. How drastic a rise have you witnessed?

One in five people have been involved in a Will dispute in the UK and this is likely to increase. Irwin Mitchell (IM) is currently receiving an average of 80 new enquiries a month. This is a 10% rise on last year’s figures and the numbers are still growing.

There are a number of potential reasons for such an increased growth in the area. As already mentioned, people are living longer giving rise to issues of capacity in respect of executing Wills and possible issues of undue influence and abuse where elderly testators are living with or being assisted by family members, friends or carers.

Families have generally become more complicated. Divorce and remarriage can lead to families being extended significantly and an increase in numbers of those that a testator may have to consider when deciding how they wish to leave their estate and also an increase of those considering themselves to be entitled to inherit.

There is also now a lot more information available. People are able to research their issues and concerns on line and can easily source professionals able to assist them with pursuing or defending them should a dispute arise.

There is speculation that this increase could, in part, be due to the growth of DIY Wills, what are your thoughts on this?

As set out above, I think there are many different reasons for why this area has grown so significantly in recent years.

Whilst I have come across several cases concerning homemade Wills, this type of dispute does not represent a significant proportion of the cases that I deal with though other lawyers, I am sure, may have had a different experience. There are a number of issues that can arise in respect of homemade Wills. Firstly, there is the issue of validity and whether the Will complies with the necessary formalities for being a valid Will. In order to be valid, a Will needs to be in writing and signed by the testator in the presence of two witnesses who must also sign the Will. If a testator is not aware of this and as such does not comply with these formalities, any purported Will is invalid and likely to result in the testator’s wishes not being carried out. Construction issues can also arise if the Will is not entirely clear as to its provisions. A testator might not properly explain his wishes or define the distributions he wishes to make when preparing his own Will. In similar cases concerning professionally prepared Wills, issues such as this can often be resolved by reviewing the solicitors Will file which should contain contemporaneous notes of the discussions with the testator at the time the Will was prepared. With homemade Wills, no such assistance is available. Similarly, the absence of any formal Will file makes any challenge in respect of a testator’s capacity, or in fact any potential dispute concerning the preparation of the Will, more difficult to assess as there is unlikely to be any information available in relation to the circumstances surrounding the preparation and execution of the Will or the testator’s intentions at that time.

There have recently been significant changes to inheritance laws; How drastic were the changes?

The introduction of the Inheritance and Trustees Powers Act 2014 (the Act) has brought about a significant change to the Intestacy Rules for intestate deaths on or after 1 October 2014.

However, those changes apply only in circumstances where there is a surviving spouse. In estates worth more than £250k, as well as being entitled to the first £250k, the surviving spouse is now entitled to receive an absolute interest in half the remainder rather than just a life interest as was the case previously. Additionally, if there are no issue/dependants the surviving spouse will now receive everything in the estate as opposed to parents and other classes of relatives who previously had an interest in anything exceeding £450k.

Personally, I can’t say the change has had any real effect in terms of the dispute work carried out, though clearly the change is relevant when assessing the value of estates in dispute. It is possible that the changes may result in less tension between a surviving spouse and children, by removing the life interest element which can give rise to the potential for disputes. Another, and more significant development, is the recent Court of Appeal decision in Illot, which has made it easier for adult children to challenge their parents Wills if they do not believe that their parents have left them reasonable provision. The ruling means that although people can still disinherit their children, they will have to have a good reason why and be able to explain what connects them to the people and organisations that they have included in their Wills instead. At Irwin Mitchell, we have certainly noticed an increase in the number of Wills now being challenged on this basis.