Over 10,000 challenges to probate were made last year, the highest number in at least a decade, according to figures obtained by Nockolds, the leading law firm.
Nockolds says that the number of family feuds over inheritance is expected to rise further as house prices remain high and DIY wills made during Covid lockdowns are challenged.
10,409 challenges to probate were made via the Courts & Tribunals Service Centres and on GOV.UK in 2023, up by more than a quarter 43% since 2019 (7,268), according to data obtained under the Freedom of Information Act. These are applications (known as caveats) to block probate being granted on estates.
According to Nockolds, high property values, particularly in London and the South East, is making disputes over estates increasingly worthwhile.
The trend for DIY wills, which was accelerated during Covid lockdowns, is also contributing to rising numbers of probate disputes as these wills are challenged. These wills are more likely to contain omissions and errors and be open to interpretation, which makes disputes more likely. This is compounded by an increasing proportion of families administering probate themselves rather than using independent, professional executors.
Nockolds says that the increasing complexity of modern family structures, which are potentially more divided, is also contributing to disputes over inheritance. The growing number of family units in which people have been previously married and have stepchildren is adding to the pool of potential claimants.
Michael Henry, Senior Associate at Nockolds, comments: “High property values means successful disputes over estates are in turn becoming more high reward. With living standards having been squeezed there is a growing appetite from family members to challenge the validity of wills that leaves property to different beneficiaries.”
“Many DIY wills are badly drafted and if the person administering the estate is a family member with no experience of acting as an executor, mistakes are more likely, which may result in legal action. Anyone who made an emergency DIY will during lockdown should consider reviewing it now with the benefit of legal advice.”
“People are relying more heavily on inheritance to get on the property ladder or provide for them in retirement. If someone is left out of a will, or stands to inherit less than they were expecting, this can trigger a claim.”
Michael Henry adds: “While the total number of caveats has increased, the exact figure of inheritance disputes is unknown because some types of inheritance dispute do not involve a caveat. There are even more inheritance disputes than even these most recent figures on caveats reveal.”
Nockolds explains that wills made during Covid restrictions are potentially more subject to challenge as many were made in unfavourable circumstances. Due to shielding and social distancing the usual steps taken by professional will writers to ensure testators had capacity and were free from undue influence may not have been possible. In the case of DIY wills there was an increased opportunity to carry out fraud and exert undue influence as individuals were isolated from people who in normal times might intervene.
Michael Henry says: “Wills are often complex and contain legal terminology that can be difficult for a lay person to understand. A mistake can result in assets or cash being distributed to the wrong person. Even worse, if a family member acting as executor is also a beneficiary, that can lead to outright fraud. Lack of mental capacity is also likely to be a trigger for claims, as people live longer and make changes to wills in advanced old age, which might later be subject to challenge.”
Number of probate disputes, 2014 to 2023
Nockolds points out that modern family structures are making probate disputes increasingly likely. People are more likely to marry multiple times, or cohabit outside of marriage, and if there are children or stepchildren involved, the likelihood of someone feeling aggrieved is significantly higher.
Michael Henry says: “The intestacy rules, which govern the distribution of an estate when someone dies without a will, do not make provision for a surviving cohabiting partner which is often the basis for a claim.”
Nockolds says that there has been a steady rise in the number of instructions where a beneficiary considers that the person intending to obtain the grant of probate is unsuitable to administer the estate. Reasons for such a belief can vary, such as the named executor having conducted themselves prejudicially against one or more beneficiaries, or causing unnecessary delays, past conduct, irresponsibility with money or a conflict of interests. This kind of dispute is much more likely where the deceased appointed a family member or friend as executor rather than a professional.
