Aug 21
Jonathan Mortimer, Consultant Partner at Raworths, lists the most frequently seen disputes relating to wills and the administration of estates based upon his experience in the field.
The top 10 (in order of increasing frequency) are as follows:
Generally speaking, the quality of the drafting of wills is relatively high. However, in some limited circumstances, it is possible for the Court to make a ruling that the original will can be retrospectively amended by what are called rectification proceedings under section 20 of the Administration of Justice Act 1982. This procedure can only be used to resolve a clerical error or a failure by the person drafting the will to understand the testator’s intentions. Consequently, it is not a general means to attack a will but to deal with mistakes.
There are very prescriptive rules as to how a will should be signed or executed by the testator in accordance with section 9 of the Wills Act 1837. If the will has not been properly executed then it will be invalid and frequently it is necessary to consider whether any earlier will applies or indeed whether the testator may have died intestate i.e. without making a will. Frequently, such cases will turn on the availability of evidence and the witnesses who were in attendance when the will was signed. Particular problems can be experienced with homemade wills or with standard will packs purchased by individuals without legal help.
Wills do on occasion provide for the setting up of a trust arrangement. This is usually where it is not appropriate for there to be an immediate distribution to the beneficiaries. Instead, individuals are appointed as trustees to hold funds on behalf of the deceased and ordinarily invest the money. Thereafter, the trustees may have considerable discretion as to when, how much and to whom to distribute the money to depending frequently on the need and age of the intended beneficiaries. However, with many competing interests of beneficiaries under such trusts it can be the case that the trustees come under some criticism by the beneficiaries for the manner in which they have exercised their discretion particularly if they are seen to have a conflict of interest.
Unfortunately, it is the case that a number of individuals will act inappropriately in pursuit of cash. At one end of the scale, a person may be forced against their wishes to write a will in a particular way. At the other end of the scale, there may be a number of softer approaches by individuals over a period of time in order to steer the testator into making a particular legacy. Although undue influence is particularly difficult to prove (since the victim is ordinarily no longer available to tell us what happened) a Court can declare a will invalid in some cases.
As a society, our age profile is changing dramatically. As individuals are living longer, we are seeing more frequently issues surrounding the ability of testators to actually prepare a will perhaps due to the onset of mental incapacity. Frequently, solicitors will advise testators to obtain a medical opinion on their ability to make a will before they do so which can dramatically reduce the chances of mental capacity being challenged. However, there are many cases in which interested parties will argue that the testator did not sufficiently know what they were doing at the time they executed the will. Importantly, for these purposes, testators are not required to have a detailed knowledge of all their finances and the full financial implications of the legacies they are considering.
There is frequently a misunderstanding by family members or other individuals connected to the deceased as to what they can, or cannot do, with the assets of the deceased post death. Sometimes actions will be well intended but on occasion they can be motivated by a desire to gain from the estate unfairly. All assets of the deceased including possessions or chattels are owned by the Estate and it is only the appointed executors who are entitled to dispose or share the assets in accordance with the will. Anyone acting inappropriately should be asked to return assets or account for them. In a serious situation, an injunction can be obtained to stop the party in question.
This is a complaint we hear very often. However, it has to be said that in most cases there is a lack of appreciation by beneficiaries as to what is involved with the administration of an estate. For example, it can take a number of weeks if not months for what is called a Grant of Probate to be obtained (the document which gives the executors the power to act when there is a will) and, if Inheritance Tax is payable, arrangements have to be made to pay the tax in the early stages. Similarly, the executors need to ensure that they have ascertained all the liabilities of the deceased so that they do not risk paying too much out without clearing the debts. The key is for executors to manage expectations and keep beneficiaries informed. It is also important to remember that frequently executors take up their roles unpaid and have to fit their duties as executors around their other commitments
This is a very important and wide ranging power for the Court to in effect re-write the terms of a will in accordance with the Inheritance (Provision for Family and Dependants) Act 1975. Ordinarily, this applies in a situation in which an individual was dependent upon the deceased prior to death and for whatever reason the will has left the individual in financial difficulties. In appropriate circumstances, the Court can redistribute the assets amongst the claiming party and the other beneficiaries to make sure that there is a fair outcome. Claims can also sometimes be made by a spouse or a partner.
It is key when making a will to ensure that the individuals selected to administer the estate can be relied upon to devote the time needed and act fairly when administering the estate. Frequently, differences of opinion and conflicts of interest arise between executors particularly when they are also beneficiaries of the estate. If necessary, the executor in question can be asked to stand down and in extreme cases an application can be made to the Court to remove the executor in question so that progress can be made to wind up the estate.
Unfortunately, the most frequent complaint is the one we can do least about. There is no right to inherit in this country and many individuals do feel very aggrieved that they have not inherited from an estate. Unless any of the above claims apply, there may be not be a clear right to object to a will. To gain clarity on the matter, it is sometimes appropriate to send to a solicitor who was engaged in the making of a will what is called a Larke v Nugus letter. This is a request for an explanation as to the circumstances surrounding a will being made. There may also be a letter of wishes written by the testator which provides some insight as to why they wrote the will in the terms they did which may provide a form of closure for the disappointed individual.
Jonathan Mortimer says: “With the substantive increase in property prices and wealth more generally over the years, we are seeing continued growth in the number of claims relating to wills. Quite rightly, the law provides numerous rights and checks to ensure fairness and to combat inappropriate conduct”.
Jonathan Mortimer is a Partner in Raworths’ Dispute Resolution team.
Updated and republished on 3 August 2021
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