AuthorNasreen Pearce

Chapter 1


Disputes over wills and inheritance have been soaring since 2006. In 2011, they were 64% higher than in 2006. Trust property disputes increased from 10 in 2006 to 111 in 2010. The 2012 statistics showed a rise in probate and trust disputes of almost 14% between 2010 and 2011 (Ministry of Justice Judicial and Court Statistics 2010/11). The 2019 figures indicate that there was an increase of almost 50% since 2016, and the Ministry of Justice’s statistics for the period January to December 2020 (see uploads/system/uploads/attachment_data/file/1014641/BPC_Infographic_2020. pdf) show that 446 probate cases were listed in the Business and Property Court in London. This does not take account of cases issued in the district registries. The impact of Covid-19 on the lives of so many is likely to be reflected in a rise in contentious probate cases.

There are many reasons for this rise. In some cases, the disputes arise because of intestacy. In others, it is because of poor drafting of the will. This is particularly the case in relation to DIY wills where the deceased’s intentions may not have been clearly set out and formalities of making a valid will have not been complied with. Nothing in life is certain or stagnant and so circumstances change, but it is not unusual to find that the deceased’s will has not been updated to take account of changed circumstances, such as the dissolution of the deceased’s marriage, which has the effect of revoking a will, or the sale or transfer of assets, the death of a beneficiary, or simply a change of mind and failure to set out the deceased’s intention at the time of, or shortly before, his/her death. Disputes can be avoided if a properly prepared will is made and the deceased’s intentions are discussed and made clear with the family before death. Often, relatives are aggrieved at being left out of the will and resort to challenging the validity of the will. Remarriages, civil partnerships, cohabitation and other family relationships are increasing, and things can become fractious between the children of each such relationship. Further complications arise where, in addition to children and step-children from the deceased’s marriage(s) and/or civil partnership(s), the deceased also cohabited with a partner and had children as a result of that cohabitation and took on responsibility for any other child within that relationship. In such a

2 A Practitioner’s Guide to Probate Disputes

scenario, the deceased’s partner, his/her children from his/her marriage(s), any step-children, and the children from his/her cohabitation with his/her most recent partner and any other person treated as a child of the family are all entitled to contest the will.

In many instances, disputes arise concerning the testator’s/testatrix’s alleged lack of mental capacity to make a will. With the increase in the elderly population, there has been a steady rise in the number of adults who lack capacity to make decisions concerning their personal welfare, health and property affairs, which includes the disposition of their assets on death. However, age itself is not a barrier to making a will. The issue in each case will be to determine whether at the relevant time the deceased had the mental capacity to make the appropriate decision and to give instructions or was pressurised or misled into making the decision. Issues relevant to testamentary capacity and where it is appropriate to apply for a statutory will are considered in...

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