Tips for avoiding Probate Disputes

Many people who come to see us to make a will or change a will do so because they have fallen out with a family member. Some people also find themselves in the position where they wish to challenge the will of a deceased relative.

Here are some of the common situations that arise when a family member dies and some advice on how to avoid probate disputes:

Step Families

Step families are one of the key reasons why there has been a substantial increase in the number of disputes surrounding wills. Quite often a couple remarry in their 50s or 60s, each with adult children from a previous relationship. If they make mirror wills leaving everything to each other or die intestate without wills, there is a real danger that the natural children of the first spouse to die could inherit absolutely nothing and the children of the last spouse to die inherit absolutely everything. In circumstances where there are step families we strongly recommend Trust Wills, enabling each spouse to ensure that ultimately their natural or biological children inherit.

Family Disputes

A common scenario is a married couple with two sons, one of whom has married and become estranged from his parents. After a while, the parents decide they want to cut the son out of the will, leaving everything to the son they have remained close to or leaving the estranged son's share to his children, thereby skipping a generation. In circumstances like this, we draft the will as per the clients' instructions but supported with a letter of wishes indicating the reasons why the parents have disinherited the son.

Charities are often beneficiaries by default as families do fall out and people deliberately make wills leaving everything to Charity to prevent family members from inheriting.

Contesting a Will

Disappointed beneficiaries are becoming more and more likely to challenge a will. If a disappointed beneficiary has an inkling that the person who has made the will may have been confused, or suffering from any form of dementia they may well try and challenge the will. If we are drafting a will for an elderly person who is a little forgetful, we often try and obtain a Doctor's letter to confirm they have the full mental capacity to make the will.

Again, if a disappointed beneficiary thinks that the person making the will has been pressurised or blackmailed by somebody, they may challenge the will on the grounds of coercion or undue influence. A situation like this can be avoided if people make a will with a Solicitor and turn up to the Solicitors office on their own so that no pressure can be exerted.

Inheritance Claims

Finally, if the person who has made the will is maintaining somebody e.g. wife, child etc. they have a duty to provide for them. If they do not provide for them the disappointed beneficiary can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for adequate provision from the estate.

Co-habitees also may make Inheritance Claims. This is increasing as many couples choose to live together rather than get married.

Overall, probate disputes are becoming more and more common and a professionally prepared will is a key step in ensuring any issues can be minimised or avoided.

If you'd like to discuss making a will, revising an existing will, or if you have a Probate matter you'd like us to look at for you, please contact Emsleys' Wills & Probate team by emailing wills.probate@emsleys.co.uk or calling 0113 201 4900.

Helen Gott

Written by

Helen Gott

Director & Head of Wills & Probate

Helen has over 8 years’ experience in the private client field. She is an expert in wills, probate, administration of trusts and estates, court of protection, mental incapacity and Powers of Attorney. Helen carries out Deputyship work and has developed a niche in this area, acting as Deputy for an increasing number of...

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