Catherine Laband of Jackaman Smith & Mulley solicitors examines the growing problem of contested estates and how the risk of claims can be reduced.

It is a sad trend but one which appears to be on the increase. Many more people are prepared to resort to litigation, not least in the area of Wills.

There is no doubt that everyone should make a Will. As property values continue to increase many more individuals and families will find that they drop into the potential “taxable estate” bracket and need to plan carefully for inheritance tax purposes. However, regardless of the size of an individual’s estate, preparing a Will with professional guidance is extremely important both to ensure that arrangements are properly recorded and to reduce the risk of those arrangements being challenged after the Testator’s death.

People are far more aware of the risks of failing to make a Will than used to be the case. Perhaps less, realise the importance of seeking professional advice both when first making a Will and when reviewing and updating the Will to allow for changes in personal or family circumstances. There are many unfortunate tales of “homemade” Wills being found invalid or claimants coming forward after death to challenge arrangements. Such claims can be extremely difficult for family and friends to deal with emotionally and financially. The costs of the dispute can significantly reduce the value of the estate.

Whilst it is generally true to say that you are free to leave your estate to who ever you wish, the law through statute and rules of equity seeks to protect certain categories of family or dependants. If the deceased has not made adequate financial provision by Will (or any such provision on intestacy) for these individuals then they can in some cases make a claim out of the estate. The main groups' having the right to make provision claims include spouses, former spouses, issue and persons who were maintained by the deceased.

Although there are protocols which aim to assist all parties to try and reach agreement without litigation, the costs of such claims can still be high because they will usually involve a number of competing parties - including those beneficiaries who will be prejudiced - if the claim succeeds. The claim will also delay considerably the administration of the estate, which can also be difficult for all concerned when practical arrangements are put on hold.

A disclosure of all the facts to the potential claimant does help to prevent a drawn out and costly Court battle. In some cases those involved will not have been aware of the deceased’s arrangements, or that someone has been unfairly overlooked. Common examples are situations where the testator has voluntarily supported individuals or has children by previous relationships. However, the risks of such disputes can be greatly reduced by taking proper professional advice at the time of making a Will to identify those who may need to be allowed for, the best way of providing for them and where some careful explanation of arrangements needs to be recorded.

Taking the time to have a properly drawn Will prepared which takes account of all relevant factors and making sure that the arrangements are reviewed and updated regularly is the key to preventing difficult and costly disputes. Otherwise your estate may be dealt with in ways you never intended.

For further information contact Catherine Laband on 01473 255591 or via email at catherine.laband@jsm.co.uk

September 2007