There is no doubt about it inheritance disputes are increasing. The statistics from the Chancery Division of the High court for ‘disputed probate’ claims are just the tip of the iceberg and there are reports in the media that report that there are some 10,000 cases of such disputes each year.
There are a number of reasons for the rise in such inheritance disputes but it is generally accepted that the increase has been driven by longer life expectancies and with an ever increasing pool of assets there is a bigger stake for descendants faced with the staggering increases in the cost of living in recent years. The picture is complicated by the nature of today’s blended families and the more complex nature of today’s family units.
Whilst there are some high profile cases where the assets of an estate have been dissipated in legal wrangling ending in the parties having their day in court, most of these disputes are fortunately settled before they get to court because the parties do have a duty to settle their dispute and where they have not attempted to do so there have been in recent years a number of high profile cases where one parties failure to engage in mediation has led to that party being penalised in costs.
The most common disputes that we see in this area are claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims challenging the validity of a will.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
In recent years we have seen more claims made under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) than claims challenging the validity of a will. The 1975 Act enables an eligible claimant to make a claim against the estate of a person who failed to reasonable financial provision for the claimant in their will or reasonable financial provision has not been made for that person under the intestacy rules. The spate of such claims in recent years has seen successful claims being made by spouses, adult children, minors and adults who are treated as a “child of the family” and cohabitees. We continue to see landmark cases in this area and we are currently awaiting the Supreme Court’s judgment in the Hirachand v Hirachand case. The appeal is against the judgment in the Court of Appeal which held that conditional fee agreements (CFA’s), generally referred to as ‘no win, no fee agreements’ could be deducted. There are contradictory cases following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act in 2012 as to whether the unsuccessful party can be held responsible for reimbursing some or all of the CFA.
If Hirchand is upheld then this will mean that claimants may be able to recover some or all of the the CFA or success fee as part of the claim. If the Court of Appeal decision is overturned then this will mean that future claimants will not be able to recover any part of their lawyers’ success fee so they will receive less from the estate after winning a claim, but in practical terms claimants are more likely to claim a higher amount from the estate to cover the success fee.
Challenging the Validity of Wills
Whilst many clients do consider challenging wills, particularly where the deceased had or was suspected to have had dementia these type of claims are hard to establish.
The common grounds for disputing a Will on the grounds of validity are that the person making the Will lacked mental capacity at the time that that person made the Will and did not understand what they were doing or that the person making the Will acted under the influence of another person.
An undue influence claim can arise when it is suspected that the deceased’s Will is the result of that person being coerced or manipulated into making a Will that does not reflect their wishes.
It is particularly difficult to succeed with a claim for undue influence as often there is insufficient evidence to support the claim but in the recent case of Jones v Jones [2023], the court held that the Will was the product of undue influence, even though there was no direct evidence that the deceased had signed the Will as a result of undue influence. However, the court looked at all the circumstances of the case and took into account a number of factors, including that the deceased was still grieving the loss of her daughter when she made her Will and also that the Will was not made with the involvement of a solicitor nor was there an up to date medical assessment at the time when the deceased made her Will. In looking at all the facts of the case, the court decided on a balance of probabilities test, that undue influence was the only conclusion that could be made taking account all the factors in the case.
The law in this area is changing rapidly as the courts see more of these inheritance disputes. If you do have a dispute in relation to inheritance, please do not hesitate to contact us.
