Pandemic contributes to spike in contested Wills
A surge in contentious Wills has revealed the urgent importance of doing it 'by the book' – here's some cautionary tales from senior solicitor Katherine Marshall.
“One day, all this can be yours.” It was a promise made between a farming father and his daughter, seemingly made in all earnestness and sincerity during a heartfelt moment. The daughter gave her heart and soul to the family farm. She worked for 70 hours a week tending the land and caring for livestock.
When the father died, something shocking happened. Despite the grand gestures and promises, the daughter was left with very little in the Will. A small stake in the farm was all she had to show for the work and dedication she’d shown, day in day out for years.
Cases like this may seem surprising. Rare even. But as any probate lawyer will tell you, this is not uncommon. And I’ve seen a real spike in the number of contested Wills landing on my desk.
Coronavirus has had its part to play. The pandemic has supercharged the increase in what us lawyers call ‘contentious probate’. It’s the result of a combination of factors – intensified by new social rules and the subsequent financial and emotional ramifications.
With the profound risk that the virus presents, the initial outbreak prompted a surge in demand for the preparation of Wills and powers of attorney. While this was understandable, some ‘interim Wills’ were prepared hurriedly with the intention of the interim version being finalised later. The problem emerges if the Will-maker doesn’t get round to updating it. Families are often left with incomplete, inconsistent and sometimes hard-to-interpret Wills.
Then there are the strict rules to the witnessing and signature of Wills. These rules have been unchanged for centuries and are critical to the validity of the Will in question. And it applies to homemade Wills as much as more conventional ones. As a result of new social distancing measures, there have been an increase in disputes the claim a Will was not properly witnessed in line with ancient legislation.
But there’s one dispute that’s more common than all others. Disputing a Will on the grounds of someone’s mental capacity to make it. Part of a solicitor’s role when preparing a Will is to establish that the person making the Will fully understands what they’re doing. But with social distancing and lack of face-to-face client contact, we see more Wills open to challenge on these grounds.
Another challenge we often see is based on ‘undue influence’. This is where a person forces someone into making a Will to benefit themselves. Ordinarily, a solicitor would meet the person making the Will to ascertain if he or she was making the Will of their own volition. But now that face-to-face meetings are less likely, and instructions are often taken by phone or video call, it’s more difficult for us to determine if someone’s being coerced.
In times where people are under financial strain, they may feel they have little choice but to pursue a claim for financial provision in a Will, even if they wouldn’t have done so normally. This is often a good thing. I’ve seen many people unwilling or reluctant to pursue a claim, when in fact there are perfectly valid reasons why they might be entitled to part of an estate. Often people feel shame or embarrassment about this process but pursuing what’s rightfully yours isn’t greed. It’s really about fairness. Don’t feel bad about pursuing it if you feel there’s good grounds to do so.
Court proceedings are often the last resort, but these disputes can often be settled through negotiations and mediation processes. A solicitor like me will do everything we can to settle the dispute through other, less formal means. But the court system is there as the ultimate arbiter and as a back-up if no other option is available.
Just ask. Our team of Private Client and Dispute Resolution solicitors will help you deal with all aspects of Wills, from making them to dealing with disputes.
Contact Katherine to discuss this further.
