Rise in disputed wills on the cards as lockdown eases
There are concerns that “lockdown wills” prepared in unusual circumstances could be challenged.
It will undoubtedly be a long time until the full societal and cultural impacts of the pandemic are known, especially for family life when many have been separated from their extended circle of loved ones for months. This is already manifesting in the growing number of enquiries about disputed wills that Weightmans’ team are starting to receive.
At the very start of the pandemic, we saw a flurry of urgent instructions to prepare wills for individuals thought to be particularly vulnerable to the virus. Solicitors had to balance complying with government restrictions and complying with the formal process of preparing a valid will.
As a result, many wills were prepared in unusual or unfamiliar circumstances, in some cases by solicitors who had not physically met the individual preparing the will. Meetings were conducted by telephone or Zoom without the usual benefits of being face to face. This has given rise to concerns that any so-called “lockdown wills”, prepared in circumstances where a solicitor was unable to physically meet with the testator and assess their capacity, could be challenged on grounds that capacity was lacking or that the individual was unduly influenced.
Lack of capacity
Family members may recognise that, sadly, an elderly relative’s cognitive functions have deteriorated during the period of social distancing, exacerbated by a lack of social interaction and stimulation. This may be particularly noticeable where interaction between family members has been restricted during lockdown.
When a will is made, the testator must have mental capacity to make that will for it to be valid, and so if there are any doubts, expert advice should be sought.
Concerns have also been raised that the necessary limiting of small family groups within a social bubble, for an extended period of time, may have influenced some individuals to change their will.
As lockdown restrictions ease, and elderly or vulnerable relatives, including care home residents, are once again allowed to meet extended family members, there may also be an influx of challenges based on “undue influence”.
This potentially compounds an already-growing problem. In 2019 the High Court recorded an all-time high of 188 contested will cases, up 47% from the previous year, according to Ministry of Justice figures. These statistics only paint a small part of the picture, since many more disputes are settled or abandoned before reaching trial.
Research from Direct Line Life Insurance in 2019 found up to a quarter of people would challenge a will prepared by a family member if they were unhappy with the provision made available to them. With the anticipated squeeze on finances, rising house prices and wills prepared in unusual circumstances, it could be a perfect storm for further increases in the number of legal challenges to a lockdown will.
Take positive steps
Once restrictions allow, it may be prudent to openly discuss with a relative any instances where a new will has been prepared during lockdown with a change in beneficiaries. The window of opportunity to change a will prepared during the pandemic is only open as long as the individual is able to understand the implications of the new will and retains capacity. For many, it is still seen as a taboo topic to discuss a family member’s will and their intentions for their estate upon their death.
However, avoiding the issue can lead to stress, legal costs and sometimes irretrievable breakdown in family relations later on. Handled sensitively now, it could be one of the most important conversations a family ever has.
Talk to our expert team for further trust, estate and will dispute legal advice.