It is widely reported that in recent years the number of people contesting a will has increased dramatically. It is a favourite topic attracting national media interest with many high profile cases dividing public opinion on the merits of being allowed to challenge someone’s final wishes.
A case we were involved in which was heavily reported was that of Heather IIott who challenged her late mother's will to include a reasonable provision for herself as an adult child.
There is much speculation on why we are seeing a rise in inheritance disputes. However, some factors include:
- The ‘modern’ lifestyle - the increase in divorce and remarriage, and cohabitation, together with families living further apart, leading to more complicated family structures, so there is more scope for argument;
- ‘The house price boom’ - Society becoming more wealthy owing to continuing house price rises, so there is more value to fight over;
- ‘The ‘compensation culture’ - people becoming more aware of their legal rights and ability to bring claims if there is something amiss, so there is more of an incentive and appetite to litigate; and
- ‘The ageing population’ - Increase in dementia rates meaning more people are making wills when they may not be in the best of health, so the wills are more susceptible to challenge.
Wills can be challenged on the basis of a lack of testamentary capacity, or because the deceased was being influenced by another and did not know or approve of the contents of the will, or the will was forged.
If the will is valid, but an aggrieved family member feels it does not make reasonable financial provision for them when it should do (or if there is no will and the statutory intestacy rules are not favourable to them) a claim can be brought under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’) for greater provision from their estate.
Court statistics recently issued indicate that in 2013 there were 97 will challenges (technically known as contentious probate) claims started in the High Court – and in 2014 this figure had jumped to 178.
There were 88 claims under the Inheritance Act in 2013, rising to 104 in 2014 and 116 in 2015. In 2016 there were 158 cases which shows a particularly marked increase that year. This may be attributable to the widespread publicity of the case involving Mrs Heather Ilott which had been heard in the Court of Appeal in 2015. The court had significantly increased the award made to Mrs IIott who, as an adult child had been excluded from her estranged mother’s will. Before this case the success rate of adult children in inheritance disputes was limited. The IIott case was appealed to the Supreme Court in 2017; the Supreme Court ruled that the Court of Appeal had no real basis for changing the initial judgement in the first place.
In 2015 and 2016, the number of contentious probate cases started to drop to 164 and then 77. This declining trend mirrors the trend of the courts in case law over that period, to be reluctant to overturn the express wishes of a deceased person. It will be interesting to see the statistics this year as to whether the impact of Ilott v Mitson will mean a similarly declining trend in the number of Inheritance Act claims.
Following the significant boom in the early part of this decade, the clarity in the case law that has followed is welcomed within the legal industry to limit the floodgates of spurious claims and offer some stability. However, the reasons behind the increase in potential claims remain, and these figures do not include the vast number of cases that settle out of court, so, for now, we expect there to continue to be a high number of potential claims but all the more reason for specialist advice.
