Probate disputes are on the rise, says Devorah Ormonde of local solicitors Wiseman Lee, who explains why making a will needs professional assistance to discourage claims against your estate after your death.
Recent research has found almost half of UK adults have no form of will at all, with 25% of people having no intention to make a will. Of those who do have a will, many are being prepared without professional assistance, as DIY wills can be purchased online quite cheaply.
However, the increase in the number of probate disputes being heard at the High Court – which in 2018 totalled 368 cases, up from 282 in 2017 and 227 in 2016 – may be linked to a rise in the number of DIY wills being made in the UK.
The Law Society is blaming the rise in probate disputes on people making DIY wills. Creating a will may be a complicated legal process. As a result, when wills are made without professional assistance, they may be unclear, omit key information or fail to comply with the legal requirements a will must adhere to. This can lead to applications needing to be made to the court to interpret the wording of the will or to challenge its validity. DIY wills can often contain mistakes that make them difficult to administer or render them illegitimate.
Even where there is no question of the validity of the will, it is still possible for a claim to be made in relation to a person’s estate after their death. Under English law, a person making the will can dispose of their estate as they wish. However, certain people can bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975 for reasonable provision to be made for them when they have not been included in a will at all or consider what has been left to them is insufficient.
Those who can bring such a claim include a surviving or former spouse or civil partner, a child or any person treated by the deceased as a child of the family, those who were maintained by the deceased immediately before their death and anyone who has lived under the same roof as husband and wife or as civil partners for a period of two years immediately prior to the death.
If you consider there are people who may wish to object to the distribution of your estate in accordance with your wishes, it is highly recommended that you instruct an experienced solicitor to prepare your will. You can then explain why you have decided to leave your estate in the way you have done, and a statement can also be prepared to be kept with your will setting out your reasons. This can then be supplied by the executor to a disappointed beneficiary after your death to discourage a claim.
There is no need for you to discuss the contents of your will with any beneficiaries during your lifetime, but you may wish to do so if you feel this could avoid a dispute occurring after your death.
