The number of inheritance disputes reaching the High Courts has jumped 62% in two years, according to the Times: as a result of a surge in the use of ‘Do It Yourself’ Will-writing services.
The Court saw 368 disputes about probate last year, an increase from the 282 cases in 2017 and 227 in 2016.
High court figures do not reflect the true number of claims since most matters settle out of court. A more telling figure is the number of caveats entered (which block the grant of probate, required for the estate to be distributed) – there were a staggering 8,159 caveats registered in 2017.
Attitudes towards Wills are increasingly litigious. A survey by Direct Line Insurance revealed that more than 12.6 million people would be prepared to go to court to dispute a will of a family member if they disagreed with the division of their estate. Using a qualified, experienced estate planning solicitor has never been more important.
DIY services are without doubt cheap and simple to use. A range of services allow testators to write their own Will – from WH Smith’s £21.99 Will writing pack to online questionnaire services which generate a PDF Will for you. Many of the online services offer a free check by a ‘qualified professional’: but it is not clear how the individual is qualified. Those that offer a check by a solicitor may seem more credible but such services bypass the most important part of the Will writing process.
When a client visits a solicitor’s office to make a Will, the solicitor takes time to understand the client’s family tree, assets and goals through a full fact-find. The experienced Will-writing solicitor is well-positioned to spot pitfalls or recommend ways to structure the estate to avoid disputes. The key point here is that solicitors can spot issues where clients do not even realise there is an issue.
A further huge benefit is that the solicitor will verify in their notes that the client has the required ‘mental capacity’ to make a Will. If they do not, it is possible that the Will could be challenged. This involves a specific set of legal tests, set out in a very old case (Banks v Goodfellow 1870) which prevails over the more recent Mental Capacity Act. The test requires that the person making the Will:
- understands the nature of what he or she is doing and its effect;
- understands the extent of the property of which he or she is disposing;
- understands and appreciates the claims to which he or she ought to give effect (i.e. people the testator ought to consider, even if he or she decides to leave them nothing); and,
- is not suffering from a disorder of the mind that “poisons [his/her] affections, perverts [his/her] sense of right, or prevents the exercise of [his/her] natural faculties”.
The test is very specific to making a Will, rather than mental capacity generally. If it later transpires that there is any evidence whatsoever that the testator did not satisfy part of the above test when making their Will, the lack of a solicitor’s notes make it far easier to challenge the Will on the testator’s death.
On the flip side, the courts are reluctant to interfere with Wills prepared by experienced Will writers – therefore, using a solicitor means your Will is less likely to be challenged.
Make or update your Will with one of our experienced solicitors – call us on Southport 01704 532890, Liverpool 0151 928 6544 or complete a Free Online Enquiry and we will soon be in touch.