Avoiding Probate Disputes

Ministry of Justice statistics show that over the past five years there has been a doubling in the number of probate disputes. A well drafted will is a good basis for avoiding some of these issues and yet some two-thirds of the population does not have one. Family arrangements have become more complex. Figures produced by the Office for National Statistics in 2011 show that the number of children born to unmarried parents was almost half the number of births. Added to that over many years, the divorce rate has increased and so too has the number of second families. During this time, the intestacy rules have not changed in respect of beneficiaries. ‘Common law’ spouses are not recognised in law and therefore on the death of one partner, the assets (unless held jointly) may pass to children or other family and not to the survivor. While the Inheritance Act 1975 (as amended) creates a category for couples who have lived together as husband and wife, there is no such provision under the intestacy rules. Those not provided for are left to make a claim if agreement cannot be reached (by way of a deed of variation). Most people are unaware that marriage or remarriage revokes a will. Equally a change in circumstances may necessitate an update. An increase in wealth is likely to be one reason why disappointed beneficiaries consider that it is worth making a claim. Added to this is the increase in life expectancy and dementia. Many cases are brought on the basis that the deceased lacked capacity or where there are concerns that a family member or carer has exerted undue influence in the making of a will. Children often consider that they have an automatic entitlement to a parent’s estate, particularly if both parents are dead or if there has been a subsequent remarriage. Parents may not feel the same. They may consider that they have already made provision for their children or that their children are better off than they are. Perhaps one child may have provided more care and support. Legislation cannot provide solutions to these and many other factors so as our lives become more complicated, it is likely that the number of cases involving challenges to wills or applications for financial provision will continue to rise, meaning that we must take responsibility in planning for more complex family arrangements.

For more information on making a will, contact Jacqueline Almond Partner, Wills, Trusts and Probate team.

For more information on contesting a will, contact Amanda Melton, Partner, Family team.

IBB Solicitors’ private client office serves clients in Buckinghamshire, West London, Uxbridge, Amersham, Chesham and surrounding areas.