What’s behind the increase in contentious probate cases?

In 2022 a total of 540,338 people died in the United Kingdom, leaving behind a significant number of relatives some of whom did not end up inheriting what they thought they were going to. A report published by IRN Legal Reports found that work in the contentious wills, trusts and probate sector had increased by 4.3% in 2021 and was forecast to increase by a further 5.2% in 2022. We are currently awaiting on the actual 2022 figures.

Statistics from Todays Wills and Probate have shown that the number of law firms professing to offer contentious probate advice has risen from 73 in 2018 to 268 by October 2022.  Of these only a limited number have a completely dedicated team, dealing exclusively with contentious wills, trusts and probate disputes.  At IBB Law we now have 3 full members of the Association of Contentious Trust and Probate Specialists.

So why in recent years has there been an increase in contentious probate cases?

Research conducted by IRN found that the following factors had helped to fuel an increase in the number of disputed wills, trusts and probate cases:

1. An increase in the number of DIY or poorly drafted Wills (particularly during COVID 19)
2. More complex family structures including more divorced couples, more remarriages, more so-called ‘blended families’ and more cohabitation.
3. The increase in wealth – in particular increases in property values.
4. An aging population with increasing instances of mental capacity issues

It has been reported that the number of disputes being heard by the High Court of the Chancery Division has also increased from 72 in 2019 to 105 in 2021. In addition to this there are the numerous claims being issued in the County Court each week.

To back up the idea of increased asset values being a driver for claims in this area, data from the Land Registry shows that average house prices in London have risen from about £25,000 in 1980 to over £520,000 by December 2021 – a staggering increase of over 2,000%. In addition, it is reported by the Land Registry that over 300,000 homes in London are now valued at £1 million or more.

We must also question what impact the intestacy rules are having in this area.   There seems little doubt that in recent years there has been something of a shift away from the typical nuclear family which is unsurprising when divorce rates are at an all-time high as are cohabitation and remarriage.

Under the current laws of England and Wales, and contrary to many people’s perception, there is no such thing as a common law marriage. Therefore, if a cohabitee dies without making a valid will, by default the intestacy rules will apply and the estate will be left to the closest known relative(s) as opposed to the cohabiting partner no matter how long the relationship. This could mean, for example, that where the house was solely in the deceased’s name and the surviving partner had been financially reliant upon the deceased, then they could potentially be left impoverished and homeless.

As the intestacy rules do not benefit a cohabitee, should they wish to get anything they would need to bring a claim for reasonable financial provision under The Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’).

The Inheritance Act does in a number of cases provide a remedy for the hard done by cohabitee provided that they meet a number of set criterion in particular that they have lived in the same household as the deceased as husband and wife or civil partners for a period of at least 2 years prior to the date of death.

In addition, critics have questioned whether it is right for the current law to distinguish between the rights of stepchildren and biological children. As with cohabitees, stepchildren have no legal entitlement under the intestacy rules and therefore, they would be reliant on the deceased having a validly executed will benefitting them or being able to make a claim under the Inheritance Act.

Until such a time as the law provides for modern family structures then if the value of estates continues to rise there is no doubt that this the number of disputes in this area of law will continue to increase.

Get in touch with our contentious probate team

To speak to a member of our expert team about a will dispute, contact us today by calling 0330 175 7614 or email us at enquiries@ibblaw.co.uk.