The rise of contentious probate cases

Contentious probate cases deal with disputes that relate to an individual’s estate once they are deceased. However, they are often complex and acrimonious. Whether an individual has had a secret second family, they were coerced into changing their will prior to death, or simply mistakes were made in the will writing, there are a plethora of reasons why contentious probate cases arise.

These kinds of cases are also on the up. According to the Ministry of Justice (MoJ), a total of 188 cases were brought forward back in 2019. This is up 60 from 2018, 43 from 2017 and 30 from 2016.

And, it’s not hard to see why there has been such a significant increase. Figures from the Co-operative Legal Services (CLS) indicate that over 38,000 are impacted by poorly drafted will every year. That being said, social shifts, the economic climate, and the global pandemic have also had a significant impact on the rise in contentious probate cases.

An influx in cases

The number of contentious probate cases has been consistently on the rise for years, and it appears more and more people are open to challenging wills. In 2019, research from Direct Line Life Insurance found that 12.6 million (24%) would challenge the bequests in their will of a loved one if they felt unhappy with the division of the estate. On top of this, it was also discovered that in 2017 there were a total of 8,159 caveats registered to block a grant of probate.

But why has there been such an influx? Well, there are numerous factors influencing this change, with the modernisation of the family unit being a primary source. More complex family structures, the increase in re-marriages, blended families and cohabitation, mean that when it comes to probate things aren’t as simple as they used to be. Communication can become fractured, and the intentions of a will, misconstrued. And, with more intricate family trees, there are more individuals that believe they are entitled to a portion of a loved one’s estate. Subsequently, this makes it more likely that a will will be contested.

Of course modernisation has influenced many other spheres of life too, including the enhancement of medical care and standard of living. As a result, people are living longer. However, according to figures by the NHS, once an individual turns 65, the chance of them developing dementia doubles every five years, and it’s estimated that currently in the UK there are around 676,000.

Coupled with this increase in the number of people suffering from dementia, individuals are more likely to make a will in their later years. According to The WillSuite Industry Report 2020, the average age of a testator in the UK is 58, while those in the age bracket of 50 to 70 years old were responsible for over half of the wills drafted in the UK. Consequently, the validity of wills written in the UK is more likely to be challenged now, on the basis of testamentary capacity.

Another reason for the increase in the number of contentious probate cases, stems from the economic climate. Speaking to Legal Futures, Gill Steel, owner of specialist private client training company LawSkills, argued that the home ownership boom following the 1970s has resulted in a massive accumulation of property wealth, which is now being passed on.

Will writing regulation

Surprisingly, there is no legislation that regulates will writing. Back in 2013, the Legal Services Board (LSB) published recommendations that called on the Lord Chancellor to amend the list of reserved legal activities to include will-writing activities. This conclusion was made based on findings that the market was working contrary to the statutory regulatory objectives as outlined in the Legal Services Act 2007. Ultimately, it concluded that this was detrimental to both providers and consumers.

The LSB argued that introducing regulation for will writing, would provide consumers with better protection and consistent access to redress. It also stated that regulating will writing would mean that when things go wrong, providers would be subject to enforcement action.

Despite these recommendations being almost unanimous, the former Lord Chancellor, Chris Grayling ultimately rejected them, and refused to make any regulations. This decision was made on the basis that the LSB had failed to “adequately demonstrate” that reservation was the best solution. In addition to this, the Lord Chancellor also argued that at the time “alternative measures” had not been “sufficiently exhausted” to address the detriment.

The impact of Covid-19

The global pandemic has changed many things over the course of the last six months, and probate is no different. Across the nation, Covid-19 has heightened many people’s awareness of their own mortality, and as a result, this has caused a trend in people rushing to complete wills. Of course, this is a problem for a number of reasons.

Rushing to create a will in many cases means that instead of seeking out a professional service, homemade wills are created instead to save money and time. However, homemade wills made in a rush and without expertise lead to mistakes. Mistakes can range from simple name misspellings and vague descriptions, to failure to validly execute a will.

Moreover, drafting errors that occur when a will is homemade, due to them being written by a novice, can mean that key assets are overlooked. This can lead to a partial intestacy, meaning that those who should have been beneficiaries are left empty handed.

On top of this, for wills that are created at the end of someone’s life, while they are subject to illness, the issue of testamentary capacity arises. Those disputing the validity of the will could argue that the individual who wrote the will did not have the mental capacity to understand what they were writing. Additionally, further issues can arise if the individual suffering from Coronavirus did not write the will themselves, and questions around undue influence may arise.

In response to the influx of individuals creating wills as a result of the pandemic, on 25 July 2020 the government announced it was going to make changes to probate legislation. Under the original Wills Act of 1837 two witnesses  had to physically accompany a testator to prevent both fraud and undue influence. However, under the new statutory instrument, this can now be done remotely via video conferencing software, and will be back-dated to 31 January 2020 and last until 31 January 2022.

That being said, the loosening of legal requirements means that this legislative change could in fact increase the number of contentious probate cases too, as assessing capacity and undue influence becomes even more difficult.