Where there is a Will, there shouldn’t be a Way (Out)?!

One of the fun things about being a litigator in a busy multi-disciplinary law firm is the variety of what comes across your desk. Truth is, no two cases are the same and, whilst that presents its own challenges, it means the work is rarely dull.

That said, certain themes do re-occur, and one area that comes up with some regularity is what we call contested probate…..basically people fighting over inheritance, or what they had hoped to inherit.

Before I did this type of work I naively assumed that, so long as you had a Will, then dealing with your assets post death would be fairly straightforward for your loved ones, or whoever you appointed as Executor of your estate. I have long since been disavowed of any such notion.

The reality is that people can, and do challenge Wills all the time, hence the whole area of contested probate that keeps us litigators busy.

Broadly people mount these challenges on the basis of either challenges to the validity of a Will or the  provision it makes – i.e. who gets what.

In terms of validity, people challenge this mainly on the basis of lack of capacity of the Will maker or undue influence being applied to them when they made their will, or, as is often the case, when they changed their will. The truth is that such claims can be difficult and expensive to pursue, but the threat of litigation from one party to another is often enough to elicit some form of settlement, even if this is more of a nuisance pay out than to settle a genuine claim.

In terms of provision, even if a will is perfectly drawn up, and done so by a specialist wills and probate solicitor, updated where necessary……certain categories of people can still mount claims on the basis that they should have been provided for but weren’t. Again, such claims may or may not have much merit, but they are often an unwelcome distraction to a grieving family who just want to get the affairs of the deceased sorted and move on. They can also be costly, and please don’t assume that the costs of either pursuing or defending any probate claim will just come from the estate – it is often not the case.

Of course, this is bread and butter for civil litigators….but what can you do to avoid it?

Well, if you don’t leave a Will you are inviting issues. So that’s the first advice – make a Will. Secondly, have it done by a solicitor specialising in the field. More than that, keep it updated where necessary (for example if you re-marry, have children etc.) and carefully consider all those who may have a claim on your bounty!

If you have any concerns in this area then please get in touch, we can, and very often do, resolve issues for parties before they get to the stage of litigation which, as mentioned above, can be costly – and not just in terms of money, but also in terms of time, relationships and mental well-being.