Increase in Contentious Probate claims

07/09/2020

According to the Ministry of Justice (MOJ) a total of 188 contentious probate cases were brought by individuals who claimed they were entitled to a share of, or a larger portion of, an estate in 2019.3

This figure is an increase from 128 in 2018, 145 in 2017 and beating the previous record of 158 in 2016.

Reasons for the increase

The reason behind the increase in claims could be numerous. Awareness through the media of potential claims and access to legal advice is one. Extended families where a deceased’s estate involves perhaps one or even more earlier marriages with children and stepchildren often give rise to disputes. There is little provision in English law for cohabiting couples. If you live with a partner but not married, if one dies then there is no automatic provision for the surviving partner in the absence of a valid will. With the existence of a valid Will nevertheless disputes can occur as to the terms of the will and provision for other family members if issues arise on the length of the cohabitation, contribution to the family and home, distribution, value of estate, etc. The value of property has increased considerably over the years. Families appear to be prepared to argue over the value of a modest estate often in the hope that the cost of lengthy litigation would discourage court proceedings and a negotiated compromise bring about a favourable compromise for a potential claimant.
Such an approach is far from a guarantee of success. In the recent case of Shapton v Seviour, Carly Shapton attempted to bring a claim against her late fathers’ estate as an adult child under the Inheritance (Provision for Family and Dependants) Act 1975 and lost. Colin Seviour left his entire estate of £268,000 to his wife, Carly’s stepmother, who suffered from motor neurone disease. Carly brought a claim for £75,000 arguing that it was unreasonable that no financial provision had been made for her. The Judge having taken the factors required under the Act into account found that Carly was reasonably affluent having had skiing and other holidays and that her credit card debt was of her own doing. 80% of the estate was tied up in the matrimonial home and Mrs Seviour needed every penny to live out her years. The Judge ruled that Ms Shapton’s case was “absolutely hopeless” and ordered her to pay £50,000 costs.

Financial independence 

Affected also by an increase in property prices has come the added difficulty for some children to become financially independent from their parents. One child may remain living at home with their parents whilst the other child(ren) move away. That child at home may eventually also become a carer for the parent(s) and with such continued close contact complaints often follow that there was influence upon the drafting of a will in favour of that child who remained at home providing care.

In Clitheroe v Bond (2020) the deceased had two children. She made a will in 2010 and another in 2013. The daughter challenged the validity of the wills when she had been described as a shopaholic and would fritter away an inheritance. The son had been involved in the preparation of both wills and there had been a failure to follow correct practices to establish capacity at the time of the wills. The judge found the son on balance failed to show the deceased was not suffering from an affective disorder of the mind and was not suffering from delusions affecting her testamentary capacity when making her wills, which were set aside.

The impact of COVID

Section 9 of the Wills Act 1837 sets out the formalities on how a Will must be prepared and executed. These formalities during the early stages of the COVID 19 pandemic were not relaxed. More recently however the MOJ published arrangements for video witnessing of a will in extreme circumstances which will be covered by a statutory instrument change. The MOJ has provided guidance which will act retrospectively being backdated to 31 January 2020. The new rules will not however come into force until the statutory Instrument effecting the change has been laid before Parliament and been passed under whichever procedure applies to it. The pandemic saw an increase in the number of Wills being made. The way instructions were taken for wills and documents prepared may attract a new wave of future disputes.

Litigation

Any litigation, including claims involving an estate can be distressing for those involved. Family disputes can be emotionally draining as well as potentially very expensive. Generally, in litigation the successful party is entitled to recover most of their costs against the unsuccessful party. The court does have wide discretion in respect to costs and can depart from this rule. In Wrangle v Brunt (2020) the claimant was successful in proceedings and claimed costs from the Defendants who argued that the parties’ costs should be paid by the Estate. They argued that the litigation has been caused by the conduct of the Testator. The court agreed and ordered both parties costs to be paid out of the estate.

More information

If you have concerns or require advice in respect of a Will or contentious probate claim please contact our Contentious Wills & Probate team who are available to help. Contact etc. Email us at mail@pinneytalfourd.co.uk or contact us on 01708 229444 (Upminster Office), 01277 211755 (Brentwood Office) or 01708 511000 (Hornchurch Office)

This article was written by Kerry Hull, Senior Associate in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of September 2020.

07/09/2020

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