There has been a dramatic rise in the number of cases where parties seek to challenge the whole or part of the provisions in wills.
Research in early 2013 showed the number of cases issued in the High Court in London disputing provisions in wills had increased by 700% over the previous five years and those seeking to declare the whole will invalid had doubled.
The general feeling is that there are several factors contributory to the rise.
Firstly the rise in re-marriages, step-families and cohabitation combined with families living further apart increases the likelihood of disputes often with underlying resentments coming to light.
Also with the increase in property and share ownership, even relatively modest estates can be worth fighting over.
That said, anyone thinking of mounting a challenge should be aware that this is far from easy. Although in theory it is only necessary to prove a case on the balance of probabilities, the Courts are reluctant to declare wills to be forged or invalid without good evidence.
There is a higher prospect of success if the claim is based on a breach of the formal requirements.
For example, we successfully challenged a will where our client demonstrated that although the will seemed to have been properly executed and two witnesses had signed they had not both been present at the same time. This not only invalidated the will but meant the solicitors who had been charging substantial fees to administer the estate had to repay these as their authority to charge was dependent upon the clause in the will.
Another growth area is in relation to negligence by will writers. Will writing is an unregulated area so many companies offering a will writing service are without adequate training or qualification.
However solicitors are also not immune from errors and have been at the end of a number of claims. In many cases they represent a better target than many due to the compulsory requirement to have insurance which does not apply to will writing companies.
An interesting feature in some of these claims arises where, for example, an intended beneficiary loses out because of the solicitor’s negligence. For example if a client with an estate of £1million asks the solicitor to prepare a will leaving £200,000 to A and the residue to B but negligently the solicitor drafts the will omitting the legacy to A, A can sue the solicitor to claim the £200,000 he should have inherited but this does not effect B who keeps the whole £1million.
What is clear is that whilst the number of disputes in this area are growing, the law is increasingly complex and specialist.
It is essential that anyone thinking of bringing or defending a claim seeks competent professional advice as soon as possible.
At Colman Coyle we are happy to discuss any potential claims, without obligation, and, if the matter proceeds, to discuss various methods of funding including “no win no fee” type agreements and third party funding.
