Will your death cause a family feud?

Over the last few years, the number of legal cases challenging wills has risen dramatically, with family members fighting each other over their loved ones' estates.

"Disagreements over wills can lead to a terrible amount of upset and can drive families apart for generations," says Andrea Zavos, partner in the contentious trusts and estates group at Speechly Bircham.

There are a number of reasons why more people are challenging wills. For Margaret Windram, associate solicitor at Thomas Eggar, it comes down to one thing – money.

"With many of us owning property, there's more money to fight over. Everyone can be very emotional when someone dies and if they then find they haven't been left what they expected, this makes them even more determined to fight for it."

Another reason why the number of disputes is rising is that there are more complicated family arrangements.

Although the world of fiction often has the mistress stepping out of the shadows to demand her share of her former lover's estate, disgruntled ex-spouses and stepchildren can make for even more disagreements when estates are divvied up.

DIY wills

DIY wills such as those you can pick up in stationary shops or on the internet are driving up challenges too.

Ian Grant, vice-chairman of the regulatory board of the Fellowship of Professional Will Writers and Probate Practitioners, says: "DIY wills are fine if your affairs are simple, but the moment there's property or money involved, there are problems."

Taking a case to court can be financially risky. "It's all or nothing," says Windram. "If you lose, you have to pay the other side's costs."

Even where a case doesn't get to court, the bills mount up. As well as solicitors' fees, if there's property at stake there could be associated charges such as mortgage interest and insurance.

Tony Crocker, director of IWC Estate Planning and Management, cites a case where the daughter from a man's first marriage contested her inheritance.

"He owned four mortgaged properties, each with between £20,000 and £30,000 of equity," he says.

"The daughter didn't feel she'd received enough, so she contested the will. It took nine months to reach an agreement, but by this time mortgage interest had wiped out the equity."

Whatever the motivation for a challenge, there are a number of ways (in England and Wales) you can contest a will. The most common is that the person who wrote it didn't have the mental, or testamentary, capacity to do so. 

A recent example of this was the case of Key vs Key. Zavos explains: "This 89-year-old farmer had just lost his wife of 65 years when his two daughters, who'd returned from the US for the funeral, discovered they weren't included in his will.

"Instead, it was going to their two brothers who'd remained in the UK and worked on the farm. They promptly marched their father to the solicitor and made him rewrite it."

Whether this was right or not, when the father died, the sons successfully challenged the later will.
The earlier will was reinstated, on the grounds that, so close to his wife's death, their father didn't have the testamentary capacity to make it legally binding.

Undue influence

Undue influence is another reason for challenging a will. This type of challenge is becoming more common as the population ages. "Claims can be brought where a carer has inherited or where the deceased has recently married someone much younger than them," explains Zavos.

"But in many of these cases it can be very difficult to prove undue influence."

The Inheritance (provision for family and dependants) Act 1975 allows a claim to be brought by a close family member or financial dependant, including a person who was living with the deceased for more than two years.

"This could be a family member or even a mistress or illegitimate child, if they can show the deceased was providing for them," says Cordelia Brand, partner in the private client department at Howard Kennedy.

Whatever your relationship to the deceased, you'll need to be quick with these claims.

Unlike other claims, which need to be brought within a reasonable time period, there's a six-month limit starting from the grant of probate or, if there was no will, from the letters of administration.

In some cases, a claim can be brought for what's legally known as 'proprietary estoppel'.

Windram says: "If someone's promised you something and you've made choices based on this, then you could have a claim - for example, if you were told you'd inherit your father's house if you looked after him and this wasn't then included in the will."

The validity of the will can also be challenged – for example, when the will isn't witnessed properly.

Read this article for more on making your will watertight.

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