Willing it to stop

It has been recently reported that the volume of contentious probate cases in the High Court has increased by 700% over the last 5 years (The Independent). That’s astounding. Those of us who work in contentious probate law on a day to day basis regularly report on the increase of such claims and why that we think that is, but a 700% increase is frankly mind boggling.

On the undisputed premise that statistics don’t lie (…), one has to wonder whether this rocketing trend is set to continue. Let’s think about it. The rise in Wills being challenged is often linked to the following issues:

Poorly drafted Wills: Well, that’s unlikely to get much better in the short term. Non-solicitor Will draftsmen/women are still unregulated. There has been talk of changing that, but as with so many good ideas, this plan has thus far fallen by the way side in favour of less effective ideas or simple inactivity. Also, more and more people believe they can draft a fully effective Will on a pro-forma document from stationers or off the internet, when sadly, very many can’t, leading to testators believing they have an effective Will, when they don’t.
Lack of Testamentary Capacity: Again, capacity problems are unlikely to abate. We live in an ageing community; people are living longer. Medical advances have been phenomenal, but more in the way of prolonging life than addressing issues of mental/testamentary capacity. Essentially, people are living longer, but not necessarily thinking with that much more clarity. Indeed, it may be people are living longer in a more vulnerable condition leaving them open to outside influences in their Will planning or to whimsical ideas.

Broken families: Disputes concerning Estates sadly thrive on broken families because testators often have more dependants than was the case historically, which means more would-be beneficiaries left hurt if excluded or not bequeathed what they hoped, and fewer assets and weaker bonds between (potential) beneficiaries. Whilst statistics suggest that there are currently fewer divorces (117,558 in 2011 compared to 141,322 in 2005) there are also fewer marriages so that’s not much to go by.
Valuable assets: Houses are generally worth less than in 2006, but they’re still not cheap and that means Estates are often of a value perceived to be worth fighting over.

Recession: And then of course we have the seemingly never-ending recession, with no promising light at the end of the tunnel (only the occasional glimpse of an oncoming train). Straightened times mean people are less likely to overlook the possibility of a lump sum gift or of making a claim against the Estate if there are genuine grounds to do so.

With the above in mind, if there is going to be any real change to this trend at the very least there will have to be greater Will drafting regulation for non-solicitors and greater care in conforming to best practices when taking instructions from elderly or unwell clients (such as Doctors’ assistance when executing a Will to minimise the risk of testamentary capacity issues and/or Letters of Wishes when making unusual provisions/exclusions in Wills).

For the moment, the positive to take from the current situation for disappointed beneficiaries is that the British legal system allows legal claims where there are genuine concerns as to the validity of or the provisions within a Will.

Barny Croft – Solicitor, Follett Stock LLP