For many years now, contentious probate solicitors have been discussing the reasons for the rising number of inheritance disputes.

From recession in the early 2000s to Brexit and COVID-19, each economic lurch has heralded pronouncements about an increase in the amount of contentious probate work being seen by probate specialists. However, the history of the world, the universe and everything tells us that the more we know, the more we are empowered and it is hard to ignore the rise of the internet for an increased interest in litigating when things get tough.

One fact remains – the prevailing economic winds look something like a monster storm for probate solicitors.

Is COVID behind increased inheritance disputes?

One law firm has recently gone on record saying that since 2018 they have seen a 50% increase in inheritance disputes and they attribute COVID as a potentially significant factor.

While undoubtedly, the circumstances we find ourselves in, whenever and whatever they are, could be considered a trigger for litigation, there are a number of clear reasons how probate disputes occur in the first place and while financial hardship may certainly make a claimant wish to seek what they believe they are entitled to, at the end of the day, there are some lawful factors that will determine whether a claim will be successful or not.

The following are some of the most common factors in disputed probate and contested Wills.

Failure to provide for

When someone dies, certain relatives and associates may believe they have a right to inherit part of the estate; however, testamentary freedom is an important principle in English and Welsh law and allows the deceased to leave their estate to whomever they choose.

And yet, under the Inheritance (Provision for Family and Dependants) Act 1975 there are provisions for any excluded party who could have reasonably expected to benefit to make a claim against the estate.

Ultimately, the parties should seek legal advice on the chances of success for their claim and the likely costs. It’s important to understand whether your claim makes financial sense and if it would be best to settle out of court.

Removal of executors

Broadly there are three types of scenario in which the removal of an executor occurs:

• cases involving disputes between beneficiaries and executors where there are questions of mishandling
• those which arise when a beneficiary wishes to remove a professional executor
• when the executor wishes to remove themselves from the office

Appointing an executor in a Will is an action often made decades before the office will be fulfilled and so executor disputes may occur because the appointment seems inappropriate.

However, unless the executor in question is happy to renounce the role, removing them may not be a straightforward task. Careful thought is needed before seeking to remove an executor as they are duty-bound to administer the estate in the best interests of the beneficiaries, so you should be able to rely on getting a good service. Plus, the costs involved in removing an executor, especially a professional executor, may reduce the value of the estate disproportionately.

Will writing and executing errors

Possibly the most fundamental aspect of Will writing is to ensure that the document is executed accurately – this means that the wording is suitable and the Will has been signed and witnessed correctly. If the execution is not correct then a court may set aside the Will. A disputed Will might also fail on matters relating to:

• inadequacy of the Will where it fails to take into account the fullness of the estate or consider the outcomes of the provisions
• the legality of the Will if the provisions lead to a potential breach of law
• errors of detail such as writing mistakes and where there isn’t enough detail to understand the true nature of the provisions
• inconsistency of language and/or logic that makes provisions contradictory or ambiguous

For the best chance of avoiding a Will dispute due to execution errors, seek an experienced solicitor for Wills who has the expertise to help you draft a suitable Last Will and Testament.

International probate

If you own property and assets abroad, such as a second home in France or a business in Portugal, you will need to ensure you understand the inheritance and succession laws and international probate rules in the jurisdiction where your property is situated. This will also be necessary for the avoidance of paying too much Inheritance Tax (IHT).

In France, for example, there are forced heirship rules which mean you cannot leave a French asset to whomever you choose and the taxes you pay on French property will be dependent on where you die. French succession law is very different to UK rules and to administer a French estate you will probably need guidance from a probate solicitor with suitable experience.

If you hold assets abroad, one Will is unlikely to be sufficient and you should consider creating a Will for each country in which your property is located. The documents should be drafted and executed by professionals who understand the jurisdictional rules to minimise the likelihood of invalidation upon your death and reduce the risk of probate delays and inheritance disputes.

The court’s opinion on “hopeless” contested probate claims

Sadly, in the last few years, we have seen rising numbers of contentious probate claims and in some instances, cases are coming to court which do not stand a reasonable chance of success; so-called ‘hopeless contested probate claims’. These are cases where the estate is often modest (yes, even several hundred thousand pounds is considered a relatively small estate) and the claimant’s sense of entitlement is not borne out by the standing of the estate and the situations of those who stand to benefit.

Contentious probate claims are typically brought and defended based on high emotion and the sense of right to inherit, but there is a limit to how much the justice system can do in these cases and it is lamentable when the costs involved in such a case end up whittling away the value of the estate. In such cases, it is hoped that the parties will be persuaded by their probate solicitors to settle out of court, but for those people who are determined to have their day in court, it can come at expensive and stressful cost.