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Will disputes on the rise

Technical Article

Publication date:

23 September 2022

Last updated:

19 October 2022

Author(s):

Barbara Gardener, Senior Consultant Tax and Trusts, Technical Connection Ltd

As a Trust and Estate Practitioner, I need to keep up with the last developments in the field. Recently I've noticed an uptick in cases involving a will dispute. In fact, the latest data from the Ministry of Justice shows 188 will-challenging cases made it to the High Court in 2019, 47% up on 2018.

The UK Inheritance Disputes Report 2022, published by IBB Law last April, paints a similarly interesting picture. In January 2022, they asked 1,000 UK citizens who had been involved in a will, inheritance, or probate dispute over the past ten years, various questions about their experience.

They found that three in four people are likely to experience a will, inheritance, or probate dispute in their lifetime. Disputes are more common amongst siblings and in relation to a father's will. Surprisingly, one in three disputes were apparently started by non-family claimants, such as "colleagues" or neighbours of the deceased.

According to the survey, there were four reasons for disputing inheritance:

  1. (perhaps obviously) not being happy with the inheritance received
  2. claim that the estate was not being distributed properly
  3. claim that the testator lacked capacity when they made the will
  4. claim that someone had coerced the testator to change the will

About 70% of claimants had lawyers involved in the dispute proceedings, with the average legal fees just below £13,000. 36% of disputes were resolved through mediation, and 21% through negotiation. About 60% of claimants obtained some form of benefit from their claim. Are you one of those that would dispute your inheritance?  

Types of will disputes

Rectification of a will

Not all cases involving disputes about inheritance are about challenging a will. Sometimes, wording of a will may not be clear enough, or there may be a clerical error, or the will drafter may have failed to appreciate the intentions of the testator. In such cases, an application can be made to the court for rectification of the will. There are plenty of cases where the court had to decide the true meaning of someone's will, taking into account contemporaneous evidence, which may include witness statements as to the real intentions of the testator.

Other than rectification, disputes can be divided into two categories: contesting a will on one of the five approved grounds, and claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Let's start with the latter.

Claims under the 1975 Act

In 2017, the Supreme Court reversed the Court of Appeal decision in Ilott v Mitson (see Ilott v The Blue Cross and others [2017] UKSC 17) by restating the narrow range of cases that can be brought in a claim under the 1975 Act. The act allows certain individuals (broadly the spouse/civil partner or someone who had been financially dependent on the deceased), who have been left out of a will (or, in some cases, were not entitled to inherit under intestacy), to contest a will. The court has discretion to vary the distribution of the deceased's estate and make an award to the claimant. There is a six-month limit (from the date of the grant of representation) to make such a claim. The award is at the court's discretion.

Most of the recent cases involved claims by cohabitees or claims out of date, many of which have been covered in previous articles. Needless to say, these are dealt with on a case-by-case basis, but a recent one caught my eye with its originality.

In (Ramus v Holt, [2022] EWHC 2309 Ch), the High Court dismissed a widow's challenge under the 1975 Act. The will of Mr C Ramus left most of his estate (valued at around £1 million) to a trust under which his wife had a life interest. The trustees had the power to advance capital to her, but also the power to terminate her interest. There was also a letter of wishes indicating that the widow should not receive any capital but should receive income, unless the trustees decided she did not need it or if she remarried or cohabited with another. Subject to this, the trust fund was held on discretionary trust for the testator’s issue and for his widow. Mrs Ramus made an application under the 1975 Act on the grounds that the will did not make reasonable financial provision for her, as the trustees could terminate her income under the trust at any time.

There was, apparently, animosity between the widow and her daughter, Clare Holt, who was one of the trustees. At the time of Mr Ramus' death, the couple were about to separate, Mrs Ramus having decided to divorce her husband.

The judge decided that "reasonable financial provision from the estate of the deceased does not become unreasonable financial provision because of the identity of the trustees." In any event, a unanimous decision of three trustees would be needed to terminate the widow's interest.

Mrs Ramus therefore suggested that removal of the trustees would be an appropriate resolution. This was also declined, the judge confirming that the 1975 Act did not allow for such an action. There are different sets of statutory provisions for removing trustees.

It is important that clients making wills are aware of potential claims under the 1975 Act. Ideally, testators should discuss their will provisions with those who could potentially make claims. While the position of a spouse/civil partner (who has an automatic right to claim under the Act) is perhaps easier to deal with, the question of who is "financially dependent" may not always be apparent. It has been suggested that a recipient of regular habitual gifts from an individual could potentially claim such dependency. If this is to be avoided, it may be more appropriate to make an occasional larger gift rather than regular payments which may amount to maintenance.

Challenging a will

There are five grounds for challenging a will:

  1. the lack of proper execution
  2. the lack of mental capacity
  3. the lack of proper understanding and approval of the content of the will
  4. undue influence
  5. forgery and fraud

Let's start with the first ground. To understand this, we need to appreciate the requirement to make a valid will. In England and Wales this is governed by section 9 of the Wills Act 1837, which states the following:

No will shall be valid unless—

  1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
  2. it appears that the testator intended by his signature to give effect to the will; and
  3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  4. each witness either—
  • attests and signs the will; or
  • acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Due to the pandemic, the Wills Act 1837 was amended in 2021 to stipulate that, where wills must be signed in the ‘presence’ of at least two witnesses, their presence can now be either physical or virtual. This is currently in force until January 2024.

We have recently had a remarkable judgment (Cooper v Chapman [2022] EWHC 1000 (Ch)) approving validity of an electronic copy of a will even though no paper copies of the will were ever found.

Dr Steven Cooper (‘the deceased’) died in 2019. He was survived by his two children and his partner since 2015, a Ms Chapman. His former marriage to Sara Cooper ended, after 13 years, in divorce in 2016.

Dr Cooper suffered for many years from poor physical and mental health. He had practically no contact with his children, indeed having been barred from having such contact by the Family Court in 2017.

He made a will in June 2009, whilst still married to Ms Cooper. This will left his estate to his two children, contingent on them reaching the age of 21 years. This will was submitted for probate by Ms Cooper. Ms Chapman made a counterclaim, asserting that the deceased had made a homemade replacement will in March 2018, which revoked the 2009 will and left almost all of the deceased’s estate to Ms Chapman, with no provision made for the two children. The deceased recorded that he was fully aware that he had given nothing to his children and that they had been fully provided for by the financial settlement made in the divorce. Ms Cooper disputed this.

Ms Chapman claimed that the 2018 will had been drafted by the deceased, printed, and then signed in March 2018 in the presence of two of her relatives who acted as witnesses. The original copy of the will had since been lost. The only remaining trace of this will was a draft found on the deceased’s computer. IT experts acting for both sides examined the computer and both agreed that the document was created in January 2018, amended in March 2018, copied to another computer in February 2019 and remained unaltered since. 

The original executed will was never found. However, Ms Chapman claimed that the 2018 will was a valid will. The two witnesses to the 2018 will also confirmed her account of events.

The judge concluded that, on the balance of probabilities, the 2018 will was valid. Further, he found the witnesses of the 2018 will to be genuine and that it was improbable that they would perjure themselves for no personal benefit. He concluded the document that was witnessed was most likely the deceased’s will and that it was therefore correctly executed and attested. It was also noted that Dr Cooper had altered his pension nomination form in favour of Ms Chapman.

On the basis of the evidence, the judge found the 2018 will had been validly executed in accordance with the 1837 Act and should be admitted to probate. As ever, everything will depend on the facts but this decision shows that the courts are willing to be more flexible than perhaps previously anticipated. And perhaps recognise that legislation which is nearly 200 years old is somewhat out of date.

Comment

The risk of a will being contested will be reduced (but obviously not avoided) if the testator gives reasons for the way they have made their will and takes care to avoid the various possible reasons for contesting their will. With the concept of a family no longer meaning a husband, wife and children, things often get complicated.

As the research shows, it’s not just family members that can contest it. Other than valid will execution, there are other matters to take care of in order to avoid a will being contested on grounds other than a valid execution. We will cover these grounds and how to protect from a challenge next month.

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This document is believed to be accurate but is not intended as a basis of knowledge upon which advice can be given. Neither the author (personal or corporate), the CII group, local institute or Society, or any of the officers or employees of those organisations accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of the data or opinions included in this material. Opinions expressed are those of the author or authors and not necessarily those of the CII group, local institutes, or Societies.

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