ANTICIPATION, NUISANCE CLAIMS AND INHERITANCE DISPUTES

Death is one of the most distressing certainties of life.

No matter how personally we find ourselves affected by grief, it is a sentiment which is solely ever felt by one person. The loss of a spouse can, of course, also be the loss of a parent and a friend.

Such upset now frequently extends beyond a single family too.

The most recent figures published by the Office for National Statistics (ONS) show that 41 per cent of marriages in England and Wales have ended in divorce within 25 years of a couple exchanging vows.

Yet just over one-quarter of all marriages in 2020 involved men and women who had been married – and either divorced or widowed – before.

Against that backdrop and the greater likelihood for bereavement to impact on step or blended families, it is perhaps unsurprising to discover the scale of another outcome of the death of a loved one.

Data released by the Ministry of Justice (MoJ) shows that the number of court cases involving disputes about inheritance have increased by almost 50 per cent in the course of the last five years.

During 2022, there were 195 such cases, compared to 128 such cases in 2018. The rise is even more pronounced – up 143 per cent – if we look back to 2012.

There are some people who might regard these sorts of numbers as justifying the rather cynical phrase that where there’s a will, there’s a relative willing to argue about its validity.

However, individuals who feel that they haven’t been adequately provided for by a loved one’s will are perfectly entitled under the law to question the terms of that document.

What the MoJ data causes me to do is wonder what lies behind the picture which it creates. After all, in my experience, the vast majority of these sorts of issues never make it to court.

I have been explaining my belief to Jonathan Ames of The Times that the proceedings recorded by the MoJ figures represent only “the tip of the iceberg”.

I believe that there are certain contributory factors.

Firstly, the value of estates has increased – something which is due in no small part to the rise in house prices in recent years.

Then, we need to examine the effect of a rapidly changing family dynamic.

In addition to the frequency of divorce and remarriage which I’ve already referred to, the number of unmarried cohabiting families has doubled in the course of the last few decades.

Under current legislation – the Inheritance (Provision for Family and Dependents) Act 1975 – individuals who cohabit do not have the same rights when it comes to inheritance as those who marry or enter into a civil partnership.

So, they have to make a legal claim demonstrating why they should receive “reasonable financial provision”.

In December 2011, the Law Commission recommended that cohabitees who had lived with partners who had subsequently died for more than five years – or two years if they had children together – should not have to resort to the law in this way.

That recommendation, though, was rejected by the coalition Government of the day.

There is one more reason why I think inheritance disputes are on the rise.

Again, in my experience, there are what I would describe as opportunistic individuals who simply chance their luck and try to gain a share of an estate by making a claim, regardless of how substantive or well-founded it is.

The costs of challenging any such demand come from estates themselves, meaning that executors generally don’t want the costs, the uncertainty or the delay of a lengthy legal action.

Not being able to tie up the deceased’s financial affairs can compound the distress of bereavement. Therefore, there is an inclination to settle.

In one recent case that I was involved in, a client family decided to pay £20,000 rather than have the merits of one such claim tested in court.

The prospect of a similar scenario is one reason why I always stress to clients how important it is to try and anticipate possible claims before they make their wills.

Whilst it is almost impossible to prevent someone issuing a claim, it is always better to determine whether a will could be challenged – and by whom – in advance in order to mitigate the sense of delay and upset for your family as well as the frustration in having someone question your testamentary freedom.