As reported by various newspapers of late, there has been a recent spike in the number of Will challenges in England and Wales, with over 10,000 challenges being recorded via the courts in the past year. That is the highest number in over a decade, and it is a 20 percent rise from the previous year.
What does this increase mean?
While most of those cases were settled by the parties before being determined by a judge, the increase in cases demonstrates that they are becoming more popular. Perhaps more importantly, it shows that claimants are also willing to incur significant legal costs (and risk paying the opponent’s legal costs should they fail) to try and force a change to a person’s last Will.
Why are Will challenges becoming more popular?
The surge in house prices during COVID-19 has likely played its part. That means estates are now typically worth more, and there is a larger pot of money to claim against.
Additionally, the increased number of blended families (partners who have their own children together, and children from previous relationships) will have contributed. This can play a part in difficult and fractured relationships, and the relevant legislation also allows any person “treated by the deceased as a child of the family” to potentially claim.
Increases in diagnosed dementia cases has also led to more claims that the testator (the person making the Will) did not have the requisite mental capacity when signing their Will.
Finally, the delays in obtaining grants of probate will also likely be a contributing factor. Record backlogs in recent years has delayed the administration of estates, which has effectively provided families with more time to fall out about matters before assets are sold and capital is distributed.
The effect
The main effect I have seen in my practice is that claimants are now typically more aggressive in their approach. There appears to be an appetite to try and force home an outcome by any means necessary, with some rather unsavoury tactics being used. That may also account for why more cases are being litigated.
I had one particularly unfortunate case where a gentleman, represented by a national law firm on a no-win no-fee basis, stated within a witness statement that he intended to make my executor client bankrupt if his case was successful. His legal representatives withdrew their representation of him just days before the court hearing, and the outcome of that court hearing was not favourable for him.
Costs
As I have written about here, the decision to challenge a Will is often fuelled by grief, and the individual feeling that they have been “wronged”. Despite that, you must only formally raise a challenge if you are fully and properly advised on the prospects of your case, and the range of different outcomes.
After a claim is issued you cannot simply walk away from the case without the agreement of the other party, otherwise you will be liable to pay the other party’s legal costs. If you get it wrong, the repercussions can be catastrophic. There have been numerous high-profile cases in recent years where legal costs have reached above £100,000 on either side, and ultimately one party is likely to foot most of that bill.
Paying for proper and thorough legal advice at the outset is often viewed as an inconvenience, but it can be money well spent if your case does not have sufficient prospects. As another local litigator often states, “failing to pay for proper legal advice can be an expensive hobby”.