The COVID-19 pandemic has brought us many challenges over the last 15 months, and unfortunately one of those is families having to come to terms with the loss of a loved one much earlier than would ever have been anticipated.
One outcome of these unexpected deaths, is that many people unfortunately did not have the opportunity to leave their affairs in order, or they believed that they did but for various reasons, their final testamentary paperwork was not valid. This has led to a surge of inheritance claims from families and friends of the deceased.
If this has happened to your family, then there is a possibility that you may have a claim against an Estate, and this form of litigation is generally known as a Contentious Probate claim.
Contentious Probate claims are a specific type of civil litigation which can be applicable when family members pass away, perhaps either leaving a Will which you may believe is invalid; or a valid Will which does not leave you the sum you believe you deserved or were promised by the deceased; or where there is no Will at all, and the Estate distribution under Intestacy does not achieve the result you think was intended.
Why is this such a growth area?
The HM Courts and Tribunals Service confirmed that in 2017 alone, more than 8,000 Caveats were registered in attempts to block a Grant of Probate being registered in an Estate.
Recent research has indicated that one in four people would challenge bequests in the Will of a loved one if they were dissatisfied with the division of the Estate.
Financial pressures where an expected inheritance fails to materialise, coupled with a greater willingness to seek legal redress, seems to be at the root of the increase.
COVID-19 and Wills
One area of concern amongst the professional Will drafting community is whether homemade Wills drafted during the pandemic can be affirmed as valid in accordance with legal Will signing requirements.
Section 9 of the Wills Act 1837 sets out the formalities on how a Will must be prepared and executed. These formalities, contrary to many people’s belief, were not relaxed during the early stages of the COVID-19 pandemic.
More recently, the Ministry of Justice published guidance for video execution and witnessing of a Will, but it was highlighted that this should only be adopted in extreme circumstances. This guidance can be backdated and applied to Wills from 31 January 2020.
The new rules will not however come into force until the Statutory Instrument effecting the change has been laid before Parliament and been passed.
As the pandemic saw an increase in the number of Wills being made, many of which were signed remotely, these testamentary documents may open up a new wave of future disputes.
Correct witnessing and signing requirements are not the only issues with hastily drafted and often homemade Wills. The Co-operative Legal Services have suggested that poorly drafted or ineffective homemade Wills are to blame for prolonged Probate applications and disputes affecting around 38,000 families per year.
From our Firm’s own experience, homemade Wills often contain ambiguity or a lack of clarity, and they can give rise to questions of capacity and the possibility of undue influence over the deceased.
If you or a family member decided to draft a Will during the COVID-19 pandemic, you may now wish to check whether this document is not only accurate in reflecting your wishes but also, that it is legally binding especially in relation to the execution requirements.
Now that the UK is trying to resume “ a new normality”, this may be a good time to review your paperwork and ensure that, should the unthinkable happen, your wishes for your friends, family and charities, are adequately stipulated in your Will. This is especially important if you have family conflict, or second marriages/relationships and step/half children as it is often the case that unless the Will is carefully drafted, your intended beneficiaries may not actually benefit after your death.
Get in Touch
Contact our Private Client team who will be able to assist you in the drafting of a clear, concise, and legally binding Will to settle any anxieties you may have.
Should you have any questions regarding Contentious Probate matters, whether in relation to your own Estate, or an Estate of which you are an Executor or (potential) beneficiary, please do not hesitate to contact the Contentious Probate Department at Barrett & Co.
Our solicitors can provide initial advice under our Fixed Fee umbrella to assist you in moving forward at this difficult time.
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