In the intricate landscape of contentious probate disputes, the surge in cases over recent years is evident in the frequent reports of families embroiled in conflicts over wills and inheritances. From Shakespeare’s King Lear to Logan Roy in Succession, the arts have reflected society’s obsession with inheritance.
There has been a surge in disputes which has coincided with a comprehensive reevaluation of wills processes by the Law Commission since 2017, offering a pivotal opportunity for potential reforms that not only facilitate conflict resolution but also proactively aim to curb disputes.
Throughout history, wills and inheritance have been focal points of family conflicts, persisting despite the evolution of time. Within this context, mediation has emerged as a crucial tool for resolving will disputes, not only as a means of saving significant time and legal costs but also emphasising the paramount importance of preventing disputes proactively.
The previous year witnessed an unprecedented peak in attempts to block probate in England and Wales, totaling 9,926 cases—a substantial 37% increase from 2019. This surge can be attributed to factors such as the rising value of bequeathed property, a proliferation of hastily prepared DIY wills during lockdowns, and a societal trend toward heightened litigiousness in inheritance matters.
Several elements have fueled this surge, including the booming property market, hastily prepared DIY wills during lockdowns, and the allure of costly legal challenges. The UK Wills, Probate & Trusts Market Report 2022 projects a market value exceeding £2 billion in 2021, expected to reach £2.4 billion by 2025.
Contentious probate, encompassing disputes over will interpretation, validity, executor or beneficiary disagreements, and asset valuation, has experienced a notable uptick. Contributing factors range from a higher death rate during the global Covid pandemic and an aging population to increased mental capacity issues, financial dependence, generational wealth transfer, rising property values, heightened public awareness, and poorly drafted homemade wills during the pandemic.
To preempt will disputes, individuals are advised to carefully craft a will using a solicitor and if the will is likely to be controversial, to leave a side letter elucidating the rationale behind their decisions. Additional proactive steps include seeking advice from a specialist solicitor, regular review of arrangements, consideration of testamentary capacity, and careful selection of executors. We always shy away from discussing death which is something we do not want to contemplate but as with everything communication is key. If discussions take place early on there is less likelihood of litigation ensuing. It is often the shock of seeing a will and being cut out which leads to hurt and disappointment in beneficiaries already struggling with the grieving process. Sadly, grieving can often involve grievance.
The ongoing reforms by the Law Commission aim to modernise the legislative framework governing wills. Proposed changes include dispensing with formalities, adjusting testamentary capacity tests, providing statutory guidance, protecting against undue influence, and potentially lowering the age for making a will from 18 to 16. (It is 12 in Scotland apparently!) The commission is also contemplating the introduction of paperless wills, emphasising the need for electronic wills to match the security standards of traditional paper wills.
Addressing concerns about “predatory marriages,” a supplementary consultation in 2023 revisits issues of electronic wills and the rule that marriage or civil partnership revokes an existing will. Stakeholder engagement is ongoing, reflecting a commitment to aligning the legislative framework with contemporary needs.
In addressing the scope of disputes, proposed reforms include adopting the Mental Capacity Act 2005’s definition for testamentary capacity, providing a clear code of practice, and granting courts dispensing power for will formalities. Electronic wills are seen as a potential avenue to reduce claims, offering easier storage and minimizing the risk of wills being lost or “disappearing.”
The debate around enabling electronic wills presents a compelling conundrum. While traditional wills rely on physical signatures in the presence of witnesses, the increasing digitization of our world prompts a shift toward electronic wills. Ensuring secure electronic signatures remains a significant concern, with solutions such as passwords, PINs, biometrics, and digital signatures under consideration. However, the associated costs of developing or embedding such technology are also being scrutinised .
Despite the potential introduction of electronic wills, it is unlikely that disputes will cease entirely. Questions surrounding execution and clarity of intentions persist. Stating that formal requirements are not always necessary when intentions are clear leaves room for disputes about the clarity of those intentions. While well-intentioned, the proposed reforms may not reduce disputes but could lead to disputes shifting towards electronic wills and the testator’s intentions.
In conclusion, the proposed reforms and proactive measures hold the potential to reshape the inheritance disputes landscape, providing a more secure and adaptable legal foundation for wills. As the Law Commission progresses in its consultations, the prospect of fewer claims and smoother estate settlements becomes tangible, with mediation standing as a valuable resource for those navigating the intricate terrain of will-related conflicts.
Considering these reforms, the Law Commission could explore additional measures to reduce disputes over wills. Introducing mandatory mediation for will disputes or enforceable mediation clauses in wills could be considered. If a testator’s wish is for beneficiaries to attempt mediation first in case of a dispute, this could become an enforceable part of a will. Given recent developments in the legal landscape, including the expansion of small claims mediation services, mandatory referral to mediation, and ongoing court cases exploring the role of ADR, it seems only a matter of time before the Courts insist on parties trying ADR, including mediation, in wills cases.
If you are entangled in an inheritance or will dispute, reach out to us without hesitation. We specialise in resolving disputes swiftly, efficiently, and at a lower cost than traditional litigation. Our track record includes successfully mediating numerous family disputes over wills and property.