Arguments over wills are becoming ever more of an issue because of continuing trends in family life, for example with more couples being in second marriages.
This is likely to lead to more challenges from aggrieved family members, who feel that they have missed out on an inheritance that they should have had, according to James Hall, a specialist contentious probate solicitor at Warwickshire-based Meridian Private Client LLP.
Mr Hall said: “In principle, husbands, wives, civil partners, children and dependants can make a claim that reasonable provision has not been made in a will and the complexity of today’s family life is leading to more disputes especially where substantial estates are involved.
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“Another factor is the increased incidence of dementia, opening the door to claims that the individual lacked the capacity to make an effective will”. As one example of this, Mr Hall cites potential claims that carers, whether family members or not, may have had an undue influence.
“For various reasons, the number of claims that one or more individuals have not been provided for appropriately is likely to grow in number.
“Challenges can be difficult but courts can order radical changes to wills where it is proved that a close family member has been treated unfairly” said Mr Hall.
This is a topical matter as the law is currently being modified with the Inheritance and Trustees’ Powers Bill expected to end up on the statute book in 2014. However, one of the most significant changes proposed when the Bill was first published has now been dropped.
At present, claims for family provision can only be made against people domiciled (broadly meaning permanently resident with home ties etc) in England and Wales but the original draft of the Bill sought to enable claims for financial provision where the deceased was regarded as domiciled outside England and Wales.
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Mr Hall said: “At the second reading stage of the Bill in the House of Lords, this proposal was dropped. One reason for this may be because it could have led to English courts making orders affecting overseas property that could have been unenforceable, or, if enforceable, have the effect of undermining foreign legal systems.
“Furthermore, there is no consensus on how the law should be properly extended, despite a clear desire for something to happen.
“As a result of the government’s change of heart, if family members or dependants want to make a claim against the estate of a non-domiciled individual who dies while he or she is resident in this country for example, they may have to use foreign legal systems (those of the country in which the individual is domiciled) to pursue their claims.
“Any potential claimants need to move fast and seek professional advice if this situation arises. They should consult specialist lawyers who will work in partnership with associates or partners in the country concerned.
“The non-domiciled person should take advice (both here and the foreign country) to ensure that the will would stand up to potential claims, mitigating the chances of any successful challenge”.
Meridian Private Client LLP partner Philip Harrison adds: “Anyone with substantial wealth or the potential to generate it through business activities or inheritance should take specialist advice about wills and connected matters such as powers of attorney, estate planning, asset protection, trusts and long-term tax planning.
“They should also review their plans and intentions regularly”.