Daniel Edwards leads the Browne Jacobson inheritance and trusts disputes team, which works closely with the firm’s private client team. He has over a decade of experience in dealing with the full range of disputes that might arise in relation to the assets of private individuals. Estatesearch’s managing director, Ben Furlong spoke to Daniel, who was happy to share his insight into some pressing questions about contentious probate matters.
Q. There are an increasing number of contentious (contested) probate claims, a huge rise since covid What are the main reasons for this?
A. In 2012, there were 80 ‘Inheritance Act’ cases issued in the High Court in London. By 201,8 that number had climbed to 128. In 2023, it was 182 (having hit 195 in 2022). The pattern is similar for ‘will challenge‘ claims; 77 in 2016, climbing to 122 in 2023.
In my article https://www.brownejacobson.com/insights/rising-tide-of-inheritance-disputes, I have written in more detail about the factors at play for the increased numbers of contentious probate disputes, including that we have an ageing population, with diverse family members and estates that are worth increasing amounts. Couple that with people being more aware that they can bring some sort of claim, and there is a perfect recipe for an increase in claims.
Q. What should testators do or not do when drawing up a will to avoid future contention?
A. Testators should ensure their Will is drawn up by a professional and they avoid penny pinching. It will be money well spent. Alternatively, taking shortcuts and saving a few hundred pounds in the short term can lead to mistakes and potential disputes, which may ultimately cost tens of thousands, or even hundreds of thousands of pounds, if a Will is contested at trial.
If family members are required to attend court, going into the witness box is a difficult experience, and they will be put under great stress. Ensuring a Will is drafted by a professional and that it is witnessed correctly helps avoid the uncertainty that can lead to litigation.
Q. The Rea v Rea appeal shows that a different judge could interpret alleged undue influence as a case of persuasion (and therefore circumstantial), rather than coercion on the same case. How hard is it to prove coercion as the legal threshold for undue persuasion?
A. The Rea V Rea case resulted in the Court of Appeal overturning the 2022 High Court decision about the validity of a Will. The Court of Appeal found there was insufficient evidence of undue influence that the daughter had coerced the deceased into changing the Will, emphasising that suspicious circumstances do not inherently prove coercion.
This case is a good example of how uncertain trial outcomes can be, with different judges reaching differing decisions on the same facts. Coercion is particularly difficult to prove as there are usually two good witnesses: one is deceased, while the other is the defendant, who is not likely to be helpful. Cases are often based on circumstantial evidence, although judges are becoming more open to deciding cases based on such evidence.
The burden of proof, though, remains on the claimant. If the Court accepts there are suspicious circumstances, then the burden flips back to the defendant’s legal team to prove, on the balance of probabilities, that the Will is valid.
Q. Why do you think the judges reach different conclusions in cases like Rea & Rea (The will and testator’s written statements were very clear in this case, and she had full testamentary capacity).
A. Judges are human beings and not robots! They are trying to solve an inherently difficult jigsaw, without having all the pieces. Clear written statements of a Testator’s wishes can also be made under undue influence. Couple this with witnesses’ naturally fallible memories, and it can easily become very difficult to unpick what has actually happened.
Q. Conducting a will search on a bereavement case to ensure the latest will has been located has become best practice for many lawyers. Do you think this should be mandatory to avoid potential contention?
A. Obviously, making sure you have the latest version of a Will is very important when it comes to administering an Estate, but there will also be contentious estates regardless of what searches one does. Whilst these searches can be very helpful, unless registering a Will ever becomes mandatory in this jurisdiction, they will never give any guarantees either.
Q. The proposals to introduce E-Wills in the UK is causing widespread concern, and The Law Society has recognised that greater scrutiny is required to fully consider this. https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/proposals-to-introduce-electronic-wills-need-more-scrutiny
How do you think the introduction of E-will will affect contested probate?
A. I’m not sure anyone has all the answers when it comes to E-Wills just yet! However, we have to recognise that times have moved on and wet signatures are rarely used these days. The percentage of cases that involve realistic allegations of fraudulent use of signatures on Wills is a lot lower than one might imagine, too. But if software can be used to reliably and securely time and date a signature, that might prove more reliable and practical than the use of handwriting experts in such cases. However, there are still questions about how Wills are witnessed for example, and these issues do need to be resolved for E-Wills to become reliable and put into widespread use successfully.
However, I don’t believe the introduction of E-Wills will greatly alter the number of claims. What will continue to dictate contention is our aging population, with 2025 predicted to be the year when the United Kingdom will see more deaths than births. The decade that follows is likely to see that trend continuing, with perhaps as many as 100,000 more deaths than births. All things being equal, this alone will have caused – and will continue to cause – an increase in the number of disputes over people’s wills and estates.
Add this to an increasing likelihood of a ‘blended family’ left behind after death, and a greater level of awareness, plus the growth in the value of assets, and contentious probate cases are likely to continue to rise.
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