A recent report from the Ministry of Justice revealed that, last year in England and Wales, 188 cases involving contested wills were heard in the High Court, an increase of nearly 50% over the previous year. In practice that figure almost certainly understates quite how many disputes there are about wills and inheritances. The cost of going to court often encourages arguing parties to reach an agreement rather than see a slice of the estate – or their own funds – wasted on legal wrangling.
Challenges to wills can arise for a variety of reasons:
- A co-habiting partner may find that they have been left out of their late partner’s will because it was not updated when the co-habitation began.
- Children from previous relationships may feel they have been unfavourably treated relative to others born later.
- An estranged child who is excluded from the will could attempt to make a claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975.
- Disappointed beneficiaries might argue that the deceased lacked the mental capacity to make a will or was subject to undue external pressure.
- The will may contain errors, a problem more likely to appear in DIY variants.
A common piece of advice is that if you think your will could be viewed as contentious for any reason, you should clearly set out the reasons for your decisions. Usually this would be done in a ‘letter of wishes’ that sits beside the will but is not itself a legal document. In an ideal world you would also explain your choice to the person(s) involved during your lifetime, but such discussions can be highly emotive, making them difficult or impossible.
The Covid-19 pandemic prompted a sudden interest in will writing and estate planning at a time when doing either was logistically problematic due to social distancing. It may also have resulted in some homemade wills that will reach the courts in years to come.
On 25 July the Ministry of Justice announced it would be amending the law in England and Wales to allow remote witnessing of wills by video link for a period of two years, with a retrospective start date of 31 January 2020. Wills made in Scotland are already able to be witnesses via video. Will writing and estate planning are best done with expert advice in an unrushed manner. But, as Covid-19 presented an unwelcome reminder, it does need to be done.
The Financial Conduct Authority does not regulate tax advice or will writing.