Death, Divorce and Dementia: risks of post-death litigation 

by | Mar 25, 2023

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Written by Cally Brosnan, Associate in the Trusts and Estate Disputes team at Kingsley Napley LLP

Martin Lewis’s ITV show last week covered the “3Ds – Death, Divorce and Dementia”, urging people to make sure they have a will in place and make Lasting Power of Attorney (LPA) arrangements. 

In my line of work, I see first-hand the rising volume of disputes that arise over wills that haven’t been updated, properly made or which disappointed beneficiaries consider ‘unfair’. 

When it comes to estate planning, clients often focus on mitigating and reducing inheritance tax; however, post-death, one of the biggest risks to an individual’s estate may be the cost of post-death litigation. 

 
 

It is essential that individuals understand the risks of poor inheritance planning and ways in which post-death litigation can be avoided. IFAs have an important role to play in this regard. 

Death 

In England and Wales individuals have testamentary freedom; meaning that they are entitled to leave the entirety of their estate to whichever individual, company or charity they like. Unlike other countries, such as France and Spain, there are no rules of ‘forced heirship’ where individuals are legally obliged to leave a portion of their estate to for example their children. 

 
 

It is important that wills are made properly as they can be challenged on any of the following grounds: lack of proper execution, lack of capacity, undue influence, want of knowledge and approval, and fraud. 

Over 2,300 will disputes have been heard in the High Court in the last 10 years (not including the substantial amount of claims that are settled outside of court) and figures are increasing markedly year on year. 

Failure to leave a valid will 

 
 

If an individual does not leave a will, upon death their estate will be distributed in accordance with the intestacy rules. 

The rules currently in place mean that a surviving spouse (or civil partner) will receive personal belongings in addition to the first £270,000 of the estate. The estate’s remainder will then be distributed half to the spouse and half to the deceased’s direct descendants. The position will differ if the deceased dies leaving no spouse and/or direct descendants. 

Cohabitees beware 

The intestacy rules make no provision for cohabiting partners. Contrary to popular belief the concept of a ‘common law marriage’ does not exist in England and Wales. Accordingly, couples should discuss financial arrangements in order to avoid a situation where the survivor is unprovided for. 

The Inheritance (Provision for Family and Dependants) Act 1975 

In certain circumstances, it may be that the effect of the intestacy rules or the terms of an individual’s will are considered unfair. Surviving dependants who feel that they have not been adequately provided for may be able to make a claim for reasonable financial provision from the deceased’s estate. 

Such claims can be costly so it is important that individuals consider their dependants and update their will following major life events e.g. the death of a spouse, the birth of a child or a new relationship. Equally, clients should be advised that assuming they can disinherit a dependent does not mean that claims will be prevented. 

Often, discussing testamentary intentions with family in lifetime can avoid disappointment, arguments and even litigation post-death. 

Divorce 

There is also a common misconception that a will becomes invalid on divorce and this is not the case. Often, individuals seek financial advice upon considering or obtaining a divorce so it is critical that clients understand this position. 

When an individual gets married, any existing will become invalid; however, a will is not automatically invalidated on divorce. 

Dementia or other loss of mental capacity 

As life expectancy increases and people are living longer, there has been a steady rise in people suffering from dementia or losing mental capacity. Often, the conversation regarding putting in place an LPA only arises once an individual begins to lose mental capacity; it may be too late at this stage as you must have mental capacity in order to make an LPA. 

Unfortunately, we do see instances of individuals in their 20s, 30s or younger losing capacity as a result of an unforeseen incident or other medical condition. If the individual in question has not made an LPA, they have no control over who is appointed to make decisions on their behalf, both in relation to property and finances and health and welfare, and instead people that are not known to them may end up making important decisions instead. The family of an individual who has lost capacity will often end up being required to go to Court in order to make decisions on their behalf which is expensive and time consuming. 

When advising a client of any age, it is important to draw the issue of LPAs to their attention in order to ensure that they retain control over who will be appointed to make significant decisions on their behalf. 

Advising your client 

Financial advisors have a key role to play in helping clients with estate planning and advising clients of the risks of post-death litigation. 

Often, clients will want to focus on limiting their inheritance tax liability; however, avoiding post-death litigation may be an even greater saving to their estate and furthermore, may help to avoid loved ones becoming embroiled in hostile litigation. 

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