Inheritance disputes on the rise as households feud over probate

Family fallouts over inheritance are on the rise with more challenges at the early hurdle of obtaining probate, which unlocks an estate so it can be distributed.

More than 10,000 applications to stop probate being granted were made last year, up 14 per cent on 2022 and 43 per cent higher than the year before the pandemic, according to new figures.

 Wrangles about probate can involve family disagreements about who should be in charge, but also be the forerunner of a full-blown legal battle over a will.

The number of applications to enter a ‘caveat’ against probate – which lasts for six months at first, but can be extended – has fluctuated over the years but is at its highest for at least a decade.

Not all inheritance disputes involve a caveat, so there might be more ongoing than the recent figures reveal, says law firm Nockolds, which obtained the data under a Freedom of Information request to the Ministry of Justice.

Nockolds suggests high house prices and DIY wills made during Covid lockdowns might have led to the rise in family feuds at the probate stage of dealing with inheritance.

House price rises raise stakes in inheritance disputes

High property values, particularly in London and the South East, are making disputes over estates increasingly ‘high reward’ if successful, says Nockolds senior associate Michael Henry.

‘With living standards having been squeezed there is a growing appetite from family members to challenge the validity of wills that leaves property to different beneficiaries,’ he says.

‘People are relying more heavily on inheritance to get on the property ladder or provide for them in retirement. If someone is left out of a will, or stands to inherit less than they were expecting, this can trigger a claim.’

He adds that the increasing complexity of modern family structures is contributing to disputes over inheritance.

Many people have been previously married and have children and stepchildren, so families are potentially more divided and the likelihood of someone feeling aggrieved is significantly higher.

Henry adds: ‘The intestacy rules, which govern the distribution of an estate when someone dies without a will, do not make provision for a surviving cohabiting partner which is often the basis for a claim.’

DIY wills, Covid lockdowns and inexperienced executors

Nockolds also identifies the trend for DIY wills, accelerated during Covid lockdowns, as contributing to probate disputes.

It says wills may contain omissions and errors and be open to interpretation, and this can be compounded when a family member undertakes probate themselves.

Nockolds explains that during the pandemic, many wills were made under restrictions and in unfavourable circumstances.

Due to shielding and social distancing, the usual steps to ensure people had capacity and were free from undue influence may not have been possible, it says.

There was also increased opportunity to carry out fraud and exert undue influence, as individuals were isolated from people who in normal times might intervene, according to Nockolds.

‘Anyone who made an emergency DIY will during lockdown should consider reviewing it now with the benefit of legal advice,’ says Henry.

Meanwhile, family members or friends are often appointed as executors to wills. They can go it alone or have the option to get legal advice, in which case the fees come out of the estate.

‘If the person administering the estate is a family member with no experience of acting as an executor, mistakes are more likely, which may result in legal action,’ says Henry.

‘Wills are often complex and contain legal terminology that can be difficult for a lay person to understand.

‘A mistake can result in assets or cash being distributed to the wrong person. Even worse, if a family member acting as executor is also a beneficiary, that can lead to outright fraud.

‘Lack of mental capacity is also likely to be a trigger for claims, as people live longer and make changes to wills in advanced old age, which might later be subject to challenge.’

How do ‘caveats’ on grants of probate work?

A successful application for probate gives someone the legal right to distribute an estate.

If you object to a person having that responsibility, for example because you think they are unsuitable, or you dispute whether the will is legal, you can ‘enter a caveat’ to prevent probate being granted.

A caveat lasts six months, and you can extend it for another six months, but the person who applied for probate can push back by giving a formal ‘warning’ against you, and the whole business can end up being costly and protracted.

Nockolds says there has been a rise in cases where a beneficiary of a will considers the person intending to obtain the grant of probate unsuitable to administer the estate.

Reasons can include an executor conducting themselves prejudicially against one or more beneficiaries, causing unnecessary delays, being irresponsible with money, or having a conflict of interest.

Nockolds notes the following about caveats:

– More than one person can apply for a caveat, if for example multiple family members dispute the validity of a will, though in these cases they may work together and jointly instruct solicitors.

– The legal reasons caveats can be used to stop probate include lack of testamentary capacity to make a valid will; undue influence; fraudulent calumny – ‘poisoning the mind’ of a testator against a rightful beneficiary; forgery or lack of proper witnessing of the will; and unsuitability of the named executor due to serious misconduct or a conflict of interest.

– The rough cost of instructing a solicitor to obtain a caveat is £250 plus VAT, but it is likely further work will be needed to explore the inheritance dispute, and that varies from case to case.

– The early caveat step to avoid probate progressing on a disputed will is relatively low cost when considering the financial implications if a disputed will gets through to probate and assets are distributed under its terms.

– You can try to remove a caveat via a formal document known as a warning, but the person objecting can enter an ‘appearance’ document within 14 days, and at that point the caveat becomes permanent and can only be removed via consent or an order of the court.

The Gov.uk website explains how to stop a probate application by applying for a caveat, and how to respond to a challenge against your probate application. 

It only gives basic information, and it is best to seek legal advice if you are determined to enter a caveat or remove one, as the process is likely to get increasingly complicated and expensive.

How to avoid family feuds over inheritance

There is no foolproof way but there are some practical steps you can take to avoid a family fallout after your death, according to Kevin Modiri, a partner at Nelsons who deals with inheritance disputes.

Should a problem arise, contentious probate and inheritance disputes are a very specialised area, he adds.

‘It’s important to consult a solicitor that is a member of the Association of Contentious Trusts and Probate Solicitors to ensure that the dispute is dealt with as efficiently as possible.’

Kevin Modiri offers the following tips.

1. Make sure you have created a last will and testament. Consult a wills and probate solicitor to help you draft your will, he writes.

The solicitor ought to keep a detailed note of your discussions for each element set out in the will.

This will help aid any disputes over your wishes and provide valuable evidence in support of your last will and testament.

2. Talk to your relatives about the content of your will so that no one is surprised after your death.

It is often the surprise and heightened emotions at the time which can lead to rash decisions on matters such as disputes.

3. Don’t adopt extreme positions in your will, such as excluding one of your children.

The fairer your will is to all the parties that ought to be included, the less likely it is to be challenged.

4. If the will is being prepared for an elderly person or someone whose mental capacity could later be challenged, you can seek advice from a suitable medical professional with access to the person’s medical records.

If they are willing, they can draft a report in support of the testator’s capacity at the time and act as a witness to the last will and testament.

This approach isn’t always possible however, so the earlier a will is created in a person’s life, the better.