The National Will Register

10 January, 2018 16:48:18

The Rise and Rise of Contentious Probate

by Tony Pearce

Disputes over inheritance are not new. Those who have considered ancient history will be aware that the Greeks and Romans established rules for the disposition of a person’s money and property on death. In his book ‘Bleak House’ Charles Dickens wrote a fictional account involving the case of Jarndyce v Jarndyce which amounted to a damning indictment of the then Court of Chancery.

Whilst judicial oversight and determinations, non-judicial dispute resolution options and the procedures set out in the Civil Procedure Rules 1998 (as amended) mean it is far less likely that a dispute over an estate will result in the total loss of an inheritance, it nevertheless remains one of the risks. Going to court over an inheritance dispute remains problematic, stressful and can prove to be very expensive.

What are the reasons for the seemingly endless rise in disputes over a will or inheritance reaching the court?

They are many and varied and range from simple error to one or more of the seven deadly sins. Some commentators have suggested that the decline in what is known as the “nuclear family” is to blame. I am not entirely convinced by this but there has undoubtedly, in my view, been an increase in disputes brought about changes in domestic relationships which can result in complicated inheritance arrangements, expectations and disappointments. There is also the so called ‘wealth gap’ between the older generation who, due to hard work and opportunity, have accumulated property wealth and assets whilst those of the younger generations are finding that owning own a house and building up wealth becomes ever more difficult.

On top of this are what I would term ‘technical reasons’. Deliberate fraud and deception aside these range from failure to ensure that simple steps are taken when taking instructions for the making of a Will and ensuring that adequate processes are adopted to ensure that a Will is valid on execution. Often as the result of a brief enquiry it is discovered that a Will is invalid or in need of rectification by reason of the fact that one of the basic requirements or processes were overlooked. For instance, the Will was not witnessed correctly, inadequately considered or prepared in circumstances that give rise to a suspicion that the will is just ‘not right’. To add to this, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and the scope and range of disputes over an anticipated or disappointing or lost inheritance are far ranging.

My view is that it is always good practice before applying for a Grant of Probate or Administration to ensure that a Certainty Will Search is undertaken. It is not altogether uncommon for those who suspect that there might be a dispute after their death to take advice from a lawyer; the existence of whom may not be readily known.

The increase in disputes over the money and/or assets of those who have passed away sadly shows no sign of diminishing. Indeed, the steady increase in the number of lawyers training to undertake this type of work indicates that the demand for knowledge and skills in this area of law continues to rise.

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