Property  

How to tackle a will dispute

  • Describe the reasons why will disputes arise
  • Identify some of the risks where will dsputes happen
  • Explain how to handle it
CPD
Approx.30min
How to tackle a will dispute
Photo by Ketut Subiyanto from Pexels

Every year since 2018 has seen a new record for the number of will disputes. The figures are not yet out for 2021, but there seems little doubt that it will be another record-breaking year. 

There are many reasons for this constant rise in claims. Increasing house prices and a booming stock market mean that estate values have increased significantly, adding to the incentive to mount a challenge. 

And we are becoming more litigious as a society: a survey in 2019 found that 25 per cent of adults would be willing to challenge a will they disagreed with. It is safe to expect this trend to continue or to accelerate. 

The emotional turmoil created by the death of a loved one provides a fertile environment for dispute. Disputes are profoundly personal and often arise over deeply embedded principles as well as money – this can make them particularly hostile and difficult to resolve.  

Fortunately will disputes do not have to be inevitable, there are simple steps that can be taken to make them less likely. But if a dispute arises there are some key things that the parties can do to make a quick resolution more likely.  

So, what can be done?

See disputes coming and prevent them

In the world of will disputes, as in so many areas, an ounce of prevention is worth a pound of cure. By understanding where will disputes most frequently arise, you can try to prevent them from arising at all – or at least cut the dispute short.

Avoid surprises

It is only natural that a person in a fragile state following the death of a loved one is likely to react poorly to any surprise or disappointment about what has been left behind. That could be because they expect to receive something but do not, or because the will they expected to find does not exist or has been replaced – or someone else has benefited who they think should not. In those cases, the chance of a dispute is substantially increased.

It is therefore sensible to suggest to any person making or changing their will that they take time to discuss it with their loved ones. That avoids any unpleasant surprises after they die. 

It also allows their loved ones to understand any provision made for them and to ask any questions while the testator is alive. Such discussions can be difficult for families, but they are far less painful than the alternative.  

Be aware of the main risks

The main causes of will disputes are concerns that: the testator did not have mental capacity to make their will or was acting under duress; the will contains mistakes; the will was not properly signed and witnessed; or that the person administering the estate is not competent to do so.

Often these issues surface only after the testator has died, when it is too late. However, they are all issues that can be avoided with planning and care.