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, no matter how large or small the estate. By making a Will, you decide who gets your estate and possessions. If you don’t make a Will (or you prepare a “homemade” Will which turns out not to be valid), the intestacy rules come into play and your estate must be distributed strictly in accordance with those rules. Even a professionally drawn Will can be contested; however the risks of this happening are significantly reduced.

Whilst it is true to say that you are free to leave your estate to whomever you wish, Parliament, through statute law and the common law rules of equity, seeks to protect certain categories of claimant.

A Court can overturn a Will which is invalid because of incapacity, duress, undue influence or other substantial ground. If overturned, an earlier Will or the intestacy rules will prevail. If the Testator has not made adequate financial provision for certain categories of family member or dependant, a claim for such provision can be made under the Inheritance (Provision for Family and Dependants) Act 1975 out of the estate.

The main groups who have a right to make such claims include the deceased’s spouse, former spouse, issue, and persons maintained by the deceased.

Determining what is adequate provision for those claimants is for a Court to decide, applying various principles.

The legal profession, whether in cases involving a challenge to a Will or for a claim for family provision, should follow certain protocols that assist both parties in a dispute to look at all the facts and try to reach an agreement if at all possible before going down the path of litigation, which can considerably reduce the value of an estate.

Often a disclosure of all of the facts to the potential claimant does help prevent a long drawn out and costly Court battle.

The costs can be high because usually a dispute involves not only two people but a number of competing claims. For example, if a Testator divides his estate between a number of people and perhaps charities, and the Will is later contested, the claimant will find themselves up against a number of beneficiaries all of whom would be prejudiced by a successful claim.

Professional advice at the time of making a Will can greatly reduce the risks of high costs and drawn out litigation which frustrate the Testator’s intentions.

If any of these issues affect you, please contact in the first instance Stephen Abbott in our Probate Team at Diss on 01379 643555 or via email on stephen.abbott@jsm.co.uk or the Litigation Department in Ipswich on 01473 255591 and ask for either Paul Stevens or Liz Whitehead. Further details of our other services are available at www.jsm.co.uk.