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Oct 04

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Huge Rise in UK Contested Probate Cases

 

Full marks!

Dangerous, Invincible and Bad…but at least the King of Pop made a Will though it hasn’t stopped mother Katherine Jackson, allegedly egged on by father Joe (totally ignored in the Will ), from mounting a legal challenge and contesting a will that leaves everything to The Michael Jackson Family Trust.

She is seeking to wrest control of the USD500 million estate from the executors appointed by the Will, notwithstanding a ‘no contest’ clause in the Will that disinherits any beneficiary who challenges its validity or its terms.

It will no doubt be a thriller and there will be blood on the dance floor at the end of it all.  Ho, Ho.

In the UK the number of people contesting a Will is rising steeply.

In the 2 years up to 2009, the number of cases coming before the UK Courts has apparently risen threefold. The ‘grey figure’ of unrecorded will contests in the UK is even greater.

So what is fuelling this undeniable trend?

One obvious cause is the number of people relying on cheap and inadequate ‘DIY wills’. This is a growing problem. People are trying to save money by buying ‘wills kits’ from stationers and putting together a document themselves in the hope that it is a valid will.

The problem is that the whole subject to writing a valid will is fraught with legal technicalities. It is not just the format of the will that is important but also the manner in which it is signed and witnessed and who may witness the will. Failure to observe strictly any one of a whole number of these technicalities can mean that the will is legally unenforceable and not worth the paper it is written on.

In these circumstances, it is hardly surprising that people are ready and willing to challenge the enforceability of such documents. In fact, it is quite possible that the unscrupulous may deliberately set it up so that it is later open to challenge of such grounds.

Another social factor is the increasing number of successive remarriages leading to rival clans of children and avarious second wives and husbands all warring over the spoils of a deceased relative.

Sometimes, a husband will leave everything to his wife in the expectation that the surviving wife will ‘do the right thing’ when it comes to sharing out the estate between the children or passing it on following her own death.

Often this means that family dependents from a previous marriage are just left out in the cold and the only way they can protect themselves is to contest the will legally.

The increasing value of estates due to rising property prices in the UK and the increasing number of people leaving all of their estate to charitable or political institutions are also factors that are contributing to the increasing number of contested probate cases.

Increasingly, people are contesting a will on the grounds that the testator may not have been of sound mind or have had ‘testamentary capacity’ when making the will. Notably,  a will was successfully challenged in 2008 on the basis that the deceased had left all of his £8 million estate to the UK Conservative Party. The court took the view that the testator must have been delusional when he made the will and that the legacy was successfully challenged by the family after his death.

Interestingly, the UK courts are showing increasing willingness to order that the costs of cases contesting a will should be paid out of the estate itself or shared between the parties and the increasing availabilty of legal costs insurance cover and conditional fee agreements means that fewer would-be litigants are deterred by the costs risk of launching a legal challenge.

The moral of the story is make sure that you make a valid will by using a solicitor and ensure that its terms are objectively fair and reasonable so as not likely to be challenged later.

For free legal advice on how to contest a will from a leading London law firm visit http://www.contesting-a-will.co.uk

About the Author

Chris Sherliker is a founding partner of Silverman Sherliker, a leading London law firm.

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