Data published by the Ministry of Justice points to a significant increase in legal rows over inheritance. A carefully drafted Will by an experienced solicitor can, says Helen Langworthy, reduce that risk.
Figures by the Ministry of Justice (MoJ) published at the end of 2023 show that the number of contested Wills has increased by 34% in the last five years. It attributes that increase to rising house prices, the ongoing cost-of-living crisis and the often-complex nature of families following divorce and separation.
In 2023, 195 inheritance disputes went to court compared with just 145 in 2017. In the past decade, contested Wills have increased by a staggering 140%. It is estimated, however, that this is just the tip of the iceberg as many inheritance rows are resolved without the involvement of the courts.
The loss of a loved one is understandably stressful with emotions running high. Misunderstandings or disappointment over an inheritance can all too easily escalate.
Whilst it is almost impossible to entirely avoid arguments over a Will, there are steps that can be taken to reduce that risk.
First, have your Will written by a solicitor. Whilst it is possible to create a Will on your own, a solicitor will bring years if not decades of experience in creating clear and legally binding Wills. Their experience will help reduce the risk of that Will being misinterpreted.
Next, it is recommended that your Will is regularly reviewed and updated. As a rule of thumb, your Will should be reviewed every five years or so, or where a life event occurs if sooner – perhaps retirement, the marriage of a child or the arrival of grandchildren.
You will also need to consider what lawyers call testamentary capacity – in short, whether you have the mental capacity needed to make a Will. A Will is likely to be challenged if beneficiaries believe you did not have the ability, or ‘sound mind’, to make or change a Will.
Here your solicitor can help. Where an elderly family member has, for example, early signs of dementia or who suffers from mental ill health, additional protections are likely to be needed. Your solicitor might recommend obtaining a certificate from a medical professional who can confirm their capacity to make a Will.
When creating a Will with your solicitor think carefully about whom you appoint as executors. We generally recommend that you appoint at least two executors, and they should be able to work with each other. Extended disputes can also occur when executors cannot agree with each other.
Many choose family members as executors as they will know the deceased extremely well. But where an estate is sizeable or complex or where extended family is involved, it is often advisable to appoint a professional executor, usually your solicitor, who will bring an impartial and objective perspective.
Speak also to your family about your wishes and the content of your Will. Explain your decisions so family members know what to expect in your Will. Whilst this will not remove entirely the risk of a Will being challenged it should help.
Finally, a word of warning. Testamentary freedom in England & Wales means that you have complete freedom to choose who to leave assets to and who you wish to exclude from your Will. However, the Inheritance (Provision for Family and Dependants) Act 1975 may give some individuals – namely close family members or financial dependants – the right to make a claim against your estate. If you wish to explicitly exclude close family members from your Will it is a good idea to include a letter of wishes that sits alongside the Will to explain your reasoning.
A solicitor can bring their experience and insights to your Will, highlighting areas that might lead to possible later conflict and how they can be addressed. The best legacy you can leave your family members is a clear Will and a well-ordered estate.
Contact our Private Client Solicitors
If you are in need of advice or assistance on any of the legal issues mentioned in this article, please contact Helen Langworthy, Partner or any member of our experienced Private Client team on 020 7631 4141 or email privateclient@bishopandsewell.co.uk
The above is accurate as at 04 March 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
