Probate disputes are rising: we explain why
Understanding how a dispute may arise, and why, may help avoid a future dispute over your estate.
Market research suggests that probate disputes have been increasing for several years. Understanding how a dispute may arise, and why, may help avoid a future dispute over your estate.
Has there been an increase in disputes?
The increase in cases might be accounted for by a variety of reasons, such as:
- An increase in value of an estate - perhaps due to rises in property prices.
- An increase in co-habiting couples - where one party dies without having made a will, there is no automatic provision in the intestacy rules for the surviving partner, leaving them with little option but to consider challenging the estate.
- An increase in ‘second’ families. It is not uncommon for disputes to arise between second spouses and children from a first marriage.
- The economy.
- The COVID pandemic.
Cost of living crisis
We are currently facing a cost of living crisis and it is inevitable that, for some people, an inheritance would be a huge help to family finances. Now more than ever, a disappointed beneficiary might feel compelled to take action.
The COVID pandemic
Another factor increasing the potential for probate disputes is the COVID pandemic. Sadly, thousands of people lost their lives unexpectedly and suddenly, having perhaps given little prior thought to how they might like their estate to be distributed upon their death.
A temporary relaxation of the requirements to validly execute a will introduced in the height of the COVID pandemic, and since extended to 31 January 2024, might increase the chances of wills being challenged too, if the requirements have not been properly adhered to.
Risks associated with a challenge
Court proceedings are expensive and there is a common misconception that the legal costs of probate claims are always met by the funds held in the estate which is subject to the dispute. That is not the case. Anyone considering litigation regarding an estate should be aware that if they are unsuccessful, they might be ordered to pay legal costs of the other party from their own resources.
How to avoid a dispute
The ideal situation, of course, is to avoid any dispute arising in the first place. It is always wise to seek professional advice about estate planning rather than attempting to deal with things yourself. Most of us don’t like to think about our own mortality but discussing estate plans with loved ones, and with expert help, could be the best way to avoid a family dispute after you are gone.
How to avoid litigation and court
The courts have for a long time encouraged parties to probate claims to try to reach a settlement between themselves without the need for a judge to make the final decision. This is known as ‘alternative dispute resolution’ and that most often comes in the form of mediation.
Mediation is a process which sees the respective parties to a dispute engage in negotiations with the support of a professional mediator with a view to settling the case between themselves. The process takes place on a ‘without prejudice’ basis; the advantage of that is that if mediation does not result in settlement, the parties cannot rely on anything said or done in the mediation in the claim going forward.
There is rarely anything to lose by going to mediation and whilst not all claims settle at mediation, a lot of them do. Even if a claim does not settle at mediation, it can be a useful exercise to narrow the issues between the parties and might facilitate a settlement later down the line.
Whilst there will be some cases in which mediation is not suitable, any party who refuses mediation simply because they consider themselves to have a very strong case runs the risk of cost penalties being levied against them, irrespective of the ultimate outcome of the case. Responding to a request to attend mediation with a blank refusal, or even silence, carries risk.
Our Wills Trusts and Estates Team is always on hand to give advice about your proposed plans for your estate and how to avoid future exposure to risk.
If you are in the unfortunate position of being involved, or potentially involved, in a dispute about an estate, we have a dedicated and experienced Disputed Wills Trusts and Probate Team to advise and guide you through the process.
If you would like further guidance on how to avoid a future dispute over your estate, please speak to our disputed wills, trusts and estates solicitors.