Contentious probate claims are increasing across England and Wales, with disputes over Wills and estates becoming more common and more complex. These claims often arise at a time of grief, financial pressure and heightened family tension.
Senior associates Emma Ironside and Geraldine Stephens explore why contentious probate claims are on the rise and examine the most common sources of conflict when a Will is challenged, highlighting where problems typically arise and how they can be avoided.
Why are contentious probate claims on the rise?
- The ongoing cost-of-living crisis, fuelled by inflation, rising interest rates, political instability and the after-effects of the pandemic, has placed significant financial and emotional strain on many families.
- With greater reliance on inheritance, disappointed beneficiaries are more willing to challenge Wills or bring claims for further provision.
- The rise in DIY Wills has also contributed to more contentious probate claims. Making a valid Will is a technical legal process, and failure to comply with the formal requirements of the Wills Act can render a Will invalid.
- Modern family structures are increasingly complex, yet the law has not kept pace. Blended families, second marriages and cohabiting couples frequently encounter difficulties when a Will is outdated or absent.
Common sources of conflict
- Poorly drafted Wills are a frequent cause of probate disputes. Where a Will fails to clearly identify beneficiaries or specify what should happen to particular gifts, executors are left to interpret the testator’s intentions without being able to seek clarification.
- Claims based on lack of testamentary capacity are increasingly common. The legal test, set out in Banks v Goodfellow, requires the testator to understand that they are making a Will, the extent of their estate, who might reasonably expect to benefit, and that they are not affected by a disorder of the mind.
- Even where capacity exists, a Will may still be invalid if the testator did not know and approve its contents. These disputes often arise where a third party prepares the Will and the testator places trust in them. Such cases highlight the risks of informal Will drafting, especially where vulnerable individuals rely on others at a time of illness or distress. Clear explanations, independent advice and professional drafting are critical safeguards.
- Executors are expected to act impartially, but disputes frequently arise where they are also beneficiaries or close family members. Conflicts may develop between executors and beneficiaries, or between joint executors, leading to delays and frustration.
- In serious cases involving mismanagement or misconduct, court applications may be required to remove an executor, who can be held personally liable for losses caused. Many of these disputes could be avoided through careful executor selection or the appointment of an independent or professional executor.
Delay to estate administration
Once a Will is contested, the administration of the estate often comes to a halt. Grants of probate may be delayed for years, during which assets can deteriorate, tax liabilities increase and legal costs escalate.
Cases such as Burgess v Whittle demonstrate how entrenched disputes and the misuse of caveats can severely delay administration, reinforcing the importance of early specialist advice and decisive action.
How we can help
Probate disputes rarely arise from a single issue. More often, they result from a combination of financial pressure, unclear intentions, inadequate Will drafting and complex family dynamics. The consequences can be severe: lengthy delays to estate administration, escalating legal costs and lasting damage to family relationships. Where disputes do arise, early advice from specialist contentious probate solicitors can be crucial in managing risk, limiting delay and working towards a practical resolution that allows estates to be administered and families to move forward.
To speak to Emma, Geraldine or other members of our team, please request a consultation.
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