FREEDOM OR FRICTION: PREVENTING PROBATE CHALLENGES

Although I have prepared wills on behalf of thousands of clients over the course of my career, I understand that even contemplating the process can make people rather uncomfortable.

That is despite the fact that many people outline from time to time what they would like to see happen to our assets when they’re gone.

What that suggests to me is that talking about making bequests – apportioning our assets to individuals or organisations or causes which are dear to us – is easier than formulating the document by which that determines how that actually happens.

Over the years, numerous commentators have remarked that no matter how old we are when we make a will, doing so is in some ways regarded as presaging our own mortality.

That could be one reason why figures published earlier this year by the Money and Pensions Services (MaPS) – an advisory body funded by the Department for Work and Pensions (DWP) – showed that more than half of adults over the age of 18 do not have a will (https://maps.org.uk/en/media-centre/press-releases/2025/over-half-of-uk-adults-dont-have-a-will#).

In circumstances where someone dies intestate (ie, without having made a will), their assets are dealt with in accordance with the Administration of Estates Act 1925.

Under that piece of legislation, spouses or civil partners of the deceased are entitled to receive personal possessions plus a fixed sum, known as the ‘statutory legacy’ – a figure which was increased to £322,000 from the end of July 2023 (https://www.legislation.gov.uk/uksi/2023/758/contents/made).

The remainder of the estate is divided equally between a spouse and children (or grandchildren, if a child has already died)

However, others are entitled to bring a claim demonstrating why they too should be entitled to a share.

The most recent data issued by the Ministry of Justice (MoJ) shows such claims have increased by nine per cent in the last five years (https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2024/royal-courts-of-justice-statistics-guidance-document).

During that period, there has been a far more conspicuous rise in the number of cases which come to court involving disputes about wills which have been made.

These claims, which are referred to as contentious probate matters, have gone up by almost 74 per cent since 2019.

Such cases sometimes surprise those people who have gone to the trouble of making a will because they believe that testamentary freedom – the ability to decide what happens to our possessions after we die – is considered fundamental and absolute.

However, the mere presence of a will does not necessarily mean that it cannot or will not be challenged.

In my experience and that of my colleagues, that is is particularly true when it comes to those wills which are composed without legal advice.

Some of those are, additionally, now drawn up having taken guidance not from a qualified lawyer but from one of many AI tools.

Regardless of the way in which a will has been prepared, it is a fact that if it hasn’t been drafted or checked by a solicitor and a problem arises after a testator’s death, then it is sadly usually too late to do anything about it.

Problems, which might easily have been anticipated by a lawyer, often result in probate disputes which compound a family’s sense of bereavement with distress, delay and expense.

A desire to simplify the will-making process, making it more robust and very much “fit for purpose in the modern age” was behind proposals made by the Law Commission in May to reform the law (https://lawcom.gov.uk/project/wills/).

Currently, the process is governed by the WIlls Act 1837 (https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/contents) together with more than a century of case law.

The Commission has described how it wishes to protect testators by providing greater certainty that their intentions will be respected.

After offering an initial response in which it welcomed the recommendations (https://www.gov.uk/government/publications/government-response-to-the-law-commission-report-making-a-will), the Government’s formal verdict is awaited.

In the meantime and given the length of time that it often takes proposals to become statute, it is possible that yet more individuals will draft their own wills.

Whilst arguably better than no testament at all, if done without seeking the counsel of a legal specialist, there is every chance that those wills may be contested, meaning that the people who prepared them will not entirely be allowed to rest in peace.

ENDS

This blog was written by Nicola Walker, TEP – STEP qualified Partner at PCS. Please do contact her for any questions or queries that you may have on Nicola@privateclientsolicitors.co.uk.