How to Plan Life after Death and the Dangers of a DIY Will

Paula Myers is the National Head of the Will, Trust and Estate Disputes team at Irwin Mitchell Private Wealth and discusses when disputes arise, why there is an increase of contentious trust and probate matters and what can be done to reduce this.

What types of trust and probate issues are most likely to turn contentious?

All cases have the ingredients for conflict to arise. They all involve people with often differing views and expectations as to what and how much they should receive when someone passes away. If there are complicated family dynamics, that can add a flavour to cases which can then turn sour.

It depends on the strength of relationships between the individuals concerned, how much is at stake, what expectations people have and whether there is scope for conflict. Issues can arise from the very start over funeral and burial arrangements, even before the terms of the will are made available to the family.

Another factor that can complicate matters is when there are issues that involve capacity. Dementia is the most common cause and it is something that is likely to become more prevalent over the next few years. There is currently no cure for dementia and as we are faced with an ageing population, the ‘dementia time bomb’ as it is now termed, is likely to feature in more of our cases. Individuals involved in disputes will allege that their loved ones could not possibly have prepared and executed a will if they had dementia, even though it is possible to do so when lucid bouts occur. Lawyers who draft wills will have to become more aware of this when taking instructions, to ensure that they protect the estate and the wishes of those who have instructed them, as well as beneficiaries that they leave behind.

We have also been instructed this year on a growing number of financial abuse cases where trustees or attorneys have mismanaged funds for a beneficiary or a loved one. This can involve small sums and in some cases very substantial sums of money. Often the breakdown of trust in this way can lead those who have been affected to feel let down and it can create conflict.

For those preparing wills, I would always advise clients to try and be open with their families so that they can understand why certain plans have been made.

Following from above, what do you think can be done to minimise these issues?

I always tell clients to try to talk to each other. For those preparing wills, I would always advise clients to try and be open with their families so that they can understand why certain plans have been made. This could clear up a number of concerns and doubts that family members can have about being loved, favoured or unloved if the will or the trust does not deliver what they expected. After death, there can just be misunderstandings between families which, if discussed, could help to move matters forward. However, often there have been underlying issues for years which only often come to the surface after a death, almost as if that one person was the character who held the family together and effectively “keeps the peace” between everyone; if they are no longer around, it is hard to avoid a conflict in those circumstances.

What developments in contentious trust and probate do you think could be made, in order to make common disputes easier to solve?

If cohabitees could be given a status that is higher than they currently have in law, that could assist with such claims. Currently, cohabitees are not provided for at all under the intestacy rules if there is no valid will in place. If they have to bring forward a claim for financial provision, they have to demonstrate that they were maintained by the deceased prior to their death and that any claim is limited to their maintenance needs only. A spouse has much greater protection under the law and can expect to achieve substantially more when in fact other than the marriage certificate, the practical way in which the relationship works is the same as if the parties were not married.

 I would always recommend instructing a qualified specialist to document your wishes.

The number of contentious probate cases are on the rise; why do you think this is?

There are a number of factors which I will try to make as clear as possible. Nowadays, most estates contain a property and with the increase in property values, there is more to fight over because even with the smallest of estates, an inheritance can make a difference to someone’s life.

We now also have more complicated family arrangements these days. Second marriages are often a source of conflict if there are children from the first marriage who expect to inherit from their parent, whilst the new partner/spouse also expects to be provided for when there is a death. These disputes are widely publicised; there have been a number of highly publicised celebrity cases which highlight how wills and trusts can be challenged.

As we are more geographically spread out, mainly for work and education, we are not as close as we were to our family members and that lack of closeness makes it somewhat easier to opt for suing or entering a dispute with them.

Finally, there are more issues which concern health such as dementia, and as discussed earlier, this can make it easier to challenge a will; we are definitely more litigious as a nation than we were 20 years ago.

What are common misconceptions your clients have on contentious trust, which can make your role difficult?

There is a misconception that the costs of the dispute will be paid by the estate. This often comes from the parties themselves or from solicitors who do not specialise in this area of law. Whilst that result can be an outcome that the parties agree on and it is an option available to the court, the general rule on costs prevails which is that the losing party has to pay the successful party’s costs. When parties don’t understand this, it can make it difficult to try and work towards a resolution. It is, I believe, always important to understand the personal liability towards costs in a dispute as it is a good focus when considering settlement.

The other issue relates to the cohabitee point above, the common misconception of a common law wife and status in respect of inheritance. There is no such thing as a common law wife and in my view, cohabitees are very much exposed if they are not protected by a will that provides for them. This will become more prevalent as more people live together now than those who are married.

I think that clients are much savvier these days and much more alive to the legal process and the levels of service to expect.

As an expert in this area, what would you say to someone if they were considering the undertaking of a ‘DIY will’?

I would strongly advise them to not do this. It takes years to train to be a lawyer to ensure that wills are drafted correctly, and the right technical terms are used throughout. I have handled a number of cases where DIY wills have been used. Parties have tried in those cases to keep matters simple but by using the wrong words, the will can be held to be invalid.

The Wills Act also gives very clear rules for guidance on the execution of wills. Having two beneficiaries in the same room is a requirement and there are so many examples where this does not happen and that can create what seems to be a perfectly valid will, invalid.

I dealt with one case years ago where two precedents had been used by a party with little legal knowledge. Unfortunately the terms used did not make sense and it created a dispute between the parties on the construction of the will itself. It was eventually resolved but the costs were well over £100,000; what started off was the purchase of a very cheap will for around £20, became a very expensive exercise. I would always recommend instructing a qualified specialist to document your wishes.

While 52% believe that law firms and solicitors are the best qualified to prepare a will, the same percentage would be willing to try and prepare an online will themselves if it meant the costs could be kept down[1].

What do you enjoy most about your role?

I love working with people and find the field of law very interesting as all cases are different and allow me and my team to take on a new challenge each day. It is always good to see a dispute end, to achieve the right result for a client who can finally move on with their lives.

On the other hand, what do you dislike?

I find lawyers who point score to be quite a challenge, as to get through disputes people need to be pragmatic and work together. The dispute is not between the solicitors but the parties and our job is to guide our clients through that process without additional pain or stress where possible. That doesn’t mean that the lawyers will always agree, but it is possible to make points well without aggression and without the need for emotive language.

The Will Writing Industry in 2018’ report found that 45% of the UK now have a Will, this has increased by 6% from the 39% recorded in 2017[1].

Over your years of practice, how have you seen the legal sector change? What changes are you looking out for that will affect the next generation of lawyers?

I think that clients are much savvier these days and much more alive to the legal process and the levels of service to expect. Clients now tend to explore their options with a number of firms before committing to instructing you, whereas previously, if a client called you or walked through the door, they had already decided to give you their work.

When I look at our reviews it is clear that our clients expect that we will get the law right and that we will follow any process correctly. What they are looking for and what they praise us for is our attitude and approach to them and that often makes the decision for them. For younger lawyers, it is important to realise that we are in a service industry and so service really counts and there is not a second chance to get it right.

[1] https://yougov.co.uk/topics/politics/articles-reports/2014/01/20/wills-and-probate

[1] Source: Arken