Top 10 reasons why challenges to Wills and estates

Generational change in attitudes mean that more people than ever before are now prepared to challenge a Will if they don’t get what they regard as a fair share

A recent survey in the UK reveals that one in four people would mount a legal challenge against a loved one’s Will or estate if they were unhappy with it.

UK Court statistics confirm such disputes are on the rise, reflecting the increased readiness of family members to oppose a relative’s last wishes, with a record number of inheritance disputes now reaching Court.

The statistics reveal that year on year there has been a six per cent increase in people contesting a grant of probate, which is an important step to gain control over an estate after someone dies.

The UK experience is mirrored in Australia.

There are many possible explanations for this trend.

Here is a countdown of 10 of the more popular theories:

#10. Immediate gratification. Some older people feel that some younger people have become conditioned to expect immediate gratification of their desires and ambitions, and are less patient than previous generations to ‘wait their turn’.

#9. Increased complexities of modern family life – such as blended families. 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 hard done by is even greater than before.

The sort of “I love you” Will that works quite well in a traditional nuclear family, is almost a guarantee of litigation in a blended family situation.

#8. Rising property prices. More people are relying on an inheritance to get on the property ladder or to provide for them in retirement.

#7. Financial pressures appear to be greater nowadays. This can cause dubious behaviour by some Executors in the administration of the deceased estate under their control, often to benefit themselves at the expense of other family-members.

This has led to more disputes over whether a Will is legal, and whether the person who applied for a grant of probate should have been the one to do so.

#6. Elder abuse. As we live longer in retirement, we are more vulnerable to the influence or bad behaviour of those around us. This is especially the case where the Executor also acted as agent under power of attorney for the deceased prior to their death. The suspicion of financial abuse under power of attorney will often trigger an estate dispute.

#5. Sense of entitlement. Some commentators speculate that millennials are becoming increasingly ‘individualistic, materialistic, and narcissistic’. There is a belief among older generations that younger people today project a sense of entitlement – that they consider themselves deserving of a greater (and earlier) inheritance than older generations feel proper.

#4. Greater awareness of legal rights. The internet can be excellent at facilitating shared experiences and greater understanding of all manner of things. A by-product of increased education appears to be increased litigation. A little knowledge can be a dangerous thing.

#3. Increased media exposure. With a sensational new high-profile case of a contested inheritance hitting the news each week, there has never been a greater awareness of the ability to contest Wills than right now. Monkey see, monkey do.

#2. Large increase in dementia and Alzheimer’s among the rapidly ageing populations in western countries like Australia, UK, Canada and USA. This leads directly to increased doubt about whether the deceased was of sound mind when they made their Will.

#1. Growth of homemade and DIY “kit-Wills”. One Will is not as good as any other Will. The most probable cause for the massive increase in litigation for challenged Wills and estates is due to the increased availability and use of low-quality Wills. These home-made “quickie Wills” (often without suitable legal advice) are a recipe for disaster, and have led directly to the massive increase in contentious estates we are now observing.

Once at Court, the most common legal reasons for contesting a Will or challenging an inheritance relates in some way to the ‘testamentary capacity’ of the deceased Will-maker.

This typically involves disputes over whether they were mentally competent enough to make or alter their Will. A related reason is ‘lack of knowledge and approval’, meaning that the Will-maker was not aware of its contents or there were suspicious circumstances.

Claims of ‘undue influence’ are now very common – meaning that the deceased was pressured to sign a Will. This is sadly now so common, there is an official term for it: “elder abuse”.

Add a homemade Will and some stepchildren to the mixture of advanced-age Will-maker with declining cognitive functions, and you have a perfect storm for family litigation. Don’t blame all the greed on lawyers – there’s always plenty of that within the family contestants.

A well-made and up-to-date Will is an excellent investment for your family’s future.

If you or someone you know has concerns about a Will being contested in the future then it is advisable to seek specialist legal advice at an early stage before issues such as mental capacity arise.

Contact us to learn more about estate-planning and estate-administration solutions, by visiting our website today and schedule a free no obligation telephone consultation to find out how we can help you and yours.

We offer a cost effective and convenient estate administration service. Our specialist expert consultants can come to you and our rates are very competitive. To learn more about our services please call (08) 8212 7233 or email mail@genders.com.au