During the difficult time of a loved one passing away, the last thing anyone should want is an acrimonious dispute. Nevertheless, contested probate cases are becoming increasingly common and family feuds about inheritance are a rising mainstay of courtroom scheduling.
Here are just a few of the reasons why probate doesn't always run as smoothly as the decedent may have hoped.
Lost or no Will
If the Will has been lost (which, considering 58% of adults don't know the whereabouts of their closest relative's Will, isn't an unlikely possibility), then problems can arise. Dying without a recoverable Will means the estate is subject to the rules of intestacy, and when the estate is administered in accordance to those rules, it won't always be in a way that's deemed fair by the deceased's surviving relatives.
A recent high-profile case of no Will being available to decide distribution of an estate was in the case of musician Prince who dies in 2016. With an estate as large as the one left behind by the music icon, the absence of a Will caused a great deal of problem, especially since the star did not have a spouse at the time of his death. The ensuing probate process was fraught with claims from numerous potential beneficiaries and has resulted in a feud between his siblings over who receives what.
But the testator doesn't have to have an estate the size of a pop legend to cause problems when a Will is lost or unrecoverable. The simple solution to this particular problem is this: a Will is vital for everybody, and once it's written, it should be stored it in a secure place and the executors should be notified of its whereabouts.
Exclusion from a Will
Contested probate cases are often caused by the exclusion of a family member from a Will often without apparent reason. Claimants may feel this to be unfair and can attempt to bring a claim under the Inheritance (Provision for Family and Dependants) Act.
When a charity is named by a testator and family members are excluded, this can be a cause of deep resentment, later giving rise to a contested probate claim.
Leaving a sizeable portion of an estate to charity may seem like an honourable thing to do, but it can also lay the groundwork for a dispute, especially if the testator has children who might think that they've been left too little.
Perhaps the most notable example of this in recent years is the case of Heather Ilott, whose mother left her entire £500,000 estate to three animal charities. Ilott was estranged from her mother for most of her life after running away from home with her boyfriend (who later became her husband) as a teenager. Having been excluded from the Will entirely, Ilott successfully contested the charitable gifts despite there being an explanation as to why she had been left nothing. Her victory in the 2015 case, in which she was awarded £164,000 is considered a landmark in Will disputes because it has led the way for a rise in cases involving disinherited adult children contesting their deceased parents' Wills.
Vulnerable testators and exploitation
If the testator is vulnerable or lacking in mental capacity, then they may be at risk of being exploited when drawing up a Will. This is known as undue influence and is a significant problem.
Those with diminished mental capacity – meaning that they lack the capacity to make well-informed decisions and fully consider the consequences – are particularly at risk. This includes elderly people suffering from dementia.
In November 2015 a report from Age UK entitled Financial Abuse Evidence Review revealed evidence to suggest at least 130,000 people in the UK aged over 65 are likely to have been financially abused by relatives or people they know.
One particular form of abuse mentioned in the report is the act of convincing a person to change their Will. The report notes that "several studies have highlighted relatives' sense of entitlement to the older person's financial assets… This is expressed usually by family members who feel they will inherit it anyway, that the older person no longer needs [the wealth] (or as much), or they feel they ‘deserve more' for ‘services rendered."
Poor drafting of a Will
While attempting to write a DIY Will may seem like an attractive, cheaper option than using a solicitor or professional Will writing service, it is far more likely that errors will be made which could invalidate the document. Drafting, language and witnessing problems will only draw the probate process out, leading to additional fees and possible dispute. This is why it helps to have the guidance of a legal professional.
A legal professional will not only make sure the document itself is valid but also see to it that there is no ambiguous wording that could potentially lead to a dispute.
An experienced solicitor can help a case of contested probate – or prevent it from happening in the first place
To find out whether you have a case for contesting a Will, or if you're a testator who wants help in making sure that no future claims are made against your estate and your money ends up with the intended beneficiaries, then contacting the right kind of lawyer is a good place to start. Oratto has been developed so that you can easily find the contested probate lawyer who is the best fit for your case.
Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.