Battle lines

With probate disputes on the rise, Maria Shahid speaks to CILEX wills and probate specialists about the cost-of-living crisis, blended families, an ageing population and other factors driving the increase

Applications to block probate increased by 56% over the five years to 2024. The process, also known as ‘caveats’, rose from 7,268 in 2019 to 11,362 in 2024, according to figures from HMCTS (His Majesty’s Courts and Tribunals Service).

“As a mediator, pretty much all I do is deal with is disputes over estates, so I am not surprised by that figure,” says David Isbister, a CILEX Lawyer and partner at central London law firm Belvederes Solicitors.

The rise reflects a mix of demographic and societal pressures, he explains. “Historically, as life becomes more financially challenging for people, litigation increases. Added to this, estates are generally worth more than they were a few decades ago, often including properties that have risen significantly in value.”

Longer life expectancy has contributed to a rise in claims related to capacity. “A person only needs to reach a certain age before suddenly questions about capacity are raised,” Mr Isbister adds.

“Greater public awareness through high-profile cases has led to an uptick in challenges, as has an increase in firms specialising in probate disputes”

Lawyers also point to economic pressures as a driver of disputes. Shaun Alexander, Chartered Legal Executive and firm principal at Alexander Legal, a North Shields firm specialising in wills, probate and estate administration and regulated by CILEx Regulation, says the cost-of-living crisis has intensified tensions around inheritance.

“On the one hand you’ve got clients trying to avoid paying for expensive wills, and on the other you’ve got disappointed beneficiaries who are so desperate for money that the option of challenging a will and potentially getting an award becomes an attractive one.”

In addition, Mr Isbister notes, greater public awareness through high-profile cases has led to an uptick in challenges, as has an increase in firms specialising in probate disputes, with more firms prepared to take on the work on a conditional fee arrangement basis.

Complex family arrangements

Wills, lawyers explain, are also reflecting the increasing complexity of family arrangements, with blended families, involving second marriages and stepchildren, becoming ever more common.

“Sometimes, a person might want their biological children to inherit, and not anyone from their second marriage. It does open the door for disputes to arise down the line,” explains Mr Isbister.

“Once you start bringing in step-children and step-parents, family relationships start to become more complex,” adds Mr Alexander. “I advise a lot of clients who exclude people from their will. They may have fallen out with children who have in some cases been estranged for 20 or 30 years, and I have to advise on the risk of excluding anyone and the will subsequently being challenged.”

Laura Read, an Associate Chartered Legal Executive at Essex and Suffolk firm Ellisons, reckons that complex and unnecessary trusts in wills are also contributing towards a rise in disputes. “We are seeing a lot of cases where we are having to try and unpick it, and perhaps do a deed of variation,” she says. “Often, these really complex and often unnecessary trusts are put in place by practitioners who aren’t qualified. In reality, there should not be that much need for a trust.”

Another common reason for claims is that the will has simply not been updated to reflect a person’s current situation, Ms Read says. “I have a matter at the moment, where the mother failed to update her will after selling her property, which has meant that the child who had a life interest trust in the property actually getting nothing, unless the beneficiaries agree to vary the residue from the proceeds of sale.”

Poor drafting also has a part to play. “The omission of a clause that would have allowed the capture of future property would have been enough in these situations,” she says.

Grounds for challenge

Caveats are intended for use where there is a genuine dispute about entitlement to a grant of probate, and act as a holding device, stopping the grant from being issued, so the position can be investigated.

However, wills can be challenged without registering a caveat. “It may sometimes simply be too late, as the application has already been made and the will has been ‘extracted’. Someone might then have a suspicion that something underhand has gone on,” says Mr Isbister.

The validity of a will can be challenged in a number of ways. The most straightforward of these concerns the execution of a will. A will may be invalid if it has not been properly executed under section 9 of the Wills Act 1837.

Even where a will is validly executed, it can still be challenged. One route is a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which enables individuals to make a claim against the estate of a deceased person where they believe that provision ought to have been made for them in the will.

Mr Alexander explains: “Claimants need to show that they haven’t been given reasonable financial provision by the deceased, or from the client, which is also linked to whether or not they have got any dependency on the client. If you’ve got someone who is maintained by the client, they have a really good claim if they have been excluded.

“The problem is that the legislation is quite vague. The courts have a lot of discretion when deciding whether or not to actually make an award from a person’s estate. If one of my clients is planning on excluding someone from their will, I always advise them to draft a statement that sets out their reasons. This stays private unless the will is challenged, in which case it comes out as evidence.”

Having a statement shows that the client has considered the question of excluding someone from their will carefully, he says.

Under the Act, a claim needs to be brought within six months of the date of the grant of probate. However, lodging a caveat can extend that period. “It gives an extra few months to pull together evidence, or to consider whether to actually bring a claim,” says Mr Alexander.

Caveats are also often used as a tool in cases of suspected fraud or where someone may be trying to rush probate improperly. Lodging the caveat acts as a protective brake.

“Technically, a caveat is not supposed to be lodged unless you contest the validity of a will,” notes Ms Read. “However, they are now being used as a tool, in cases of potential fraud, to try and gain some control before the assets are completely dissipated.”

Another common ground focuses on the testator’s mental capacity. A will may be challenged on the basis that the testator lacked testamentary capacity, a legal test set out in the 1870 case of Banks v Goodfellow.

The test requires a person making a will to understand what they are doing, what they own, who might reasonably expect to benefit and whether any mental disorder affected their decision.

So, even where capacity exists, the testator must know and approve the contents of the will. “Although this is a separate head, it often goes hand in hand with other heads, especially capacity,” says Mr Isbister. “It could be that the will is drafted in such a way that it’s difficult for the testator to follow. Sometimes, it could be a language barrier.”

Undue influence

A separate ground of challenge is undue influence, and effectively involves a person being coerced into making a will. Mr Isbister says: “I’ve been involved in mediations where one child has been left by the other siblings to look after the elderly parent, and the parent then changes their will to prefer that child, maybe because they have put their life on hold to look after them. And then after the event, the other siblings, who were very happy to sit back and let them do all the work, suddenly say: ‘You had a position of trust and confidence, and you abused that trust’. There is rarely evidence in these cases, because these things happen behind closed doors.”

Mr Alexander continues: “What you are hoping for when bringing an undue influence claim, is that, if the undue influence is on the part of the beneficiary of the will, that part of the will be deemed invalid, or that the full will is invalid, in which case you would revert back to the intestacy rules.”

A separate ground of challenge is undue influence, which effectively involves a person being coerced into making a will

Fraudulent calumny is a specific type of undue influence which arises when a testator is turned against a particular individual. Mr Isbister says: “The classic case would be where a child is looking after an elderly parent and poisons the parent’s mind against another child and convinces them to cut out that sibling.”

While undue influence and coercion can be hard to prove, capacity, knowledge and approval can be built from evidence, and many lawyers are now raising arguments based on both these grounds.

Mr Isbister goes on: “Take somebody who, on the face of it, seems quite alert and coherent but may be on medication. Suddenly a list of all the medications they are on will be brought out, together with the potential side effects and a picture painted of this person as someone who can barely understand their own name. It’s all in the way the facts are presented.

“The best way around this, if there is any concern at all about capacity, is to get a capacity assessment done. The trouble is that trying to get a GP to carry out such an assessment in time is almost impossible, so it really needs to be done privately and that can cost hundreds of pounds. Often people are unwilling to pay that much to tell them something they already know.

“The trifecta of capacity, knowledge and approval and undue influence are all quite common heads of claims. It is very unusual to have a section nine point.”

Is reform needed?

Homemade wills have been growing in popularity over the last few decades. Stationery shop will packs became increasingly popular in the 1980s, but the real expansion came in the 1990s and 2000s, and by the 2010s online templates made low-cost will writing increasingly accessible.

The law governing wills is still largely based on the Wills Act 1837 – although Law Commission proposals to update the law are in train – and crucially does not require the involvement of a legally qualified professional. While the Act makes will-writing accessible, it does not insulate homemade wills from challenge.

“People can find precedents online and, worryingly, they are drafting what they think is a will, but has either been drafted incorrectly or has not been properly signed,” says Mr Alexander. “Unfortunately, there are a lot of homemade wills out there, and it is usually these wills that cause the problem because you have not got someone like me asking questions like: have you considered the risk of excluding someone?”

“A lot of challenges arise when people realise that they are not going to get an inheritance due to a homemade will not having been drafted or signed correctly”

A lot of challenges arise when people realise that they are not going to get an inheritance due to a homemade will not having been drafted or signed correctly, says Alexander.

Will writing is not currently a reserved legal activity, as defined in the Legal Services Act 2007. A Legal Services Board recommendation that will-writing should be a reserved legal activity was rejected by the then Lord Chancellor, Chris Grayling, in 2013.

 “As someone who specialises in this area and teaches trainee solicitors on wills and administration of estates, for me it is a really important area of the law and it should only be practised by competent professionals,” argues Mr Alexander.

It is a view shared by Ms Read. “Being on the other side of it, I see how much these disputes can destroy families and cost money. It is a very complex area and should only be carried out by a qualified person who knows their stuff.”

Mr Isbister acknowledges that cost can be a deciding factor in writing a homemade will. “The government wants people to have access to wills, and there is a huge difference in cost, depending on where you go. We charge an hourly rate, which can be expensive,” he says.

“It’s just about trying to achieve a balance between having access to will preparation and protection. I think we need to bring awareness to the risks of using a will writer who does not have formal training and encouraging people to spend the money and get it done professionally by a fully qualified will writer.”