Where there is a will, negotiate

Wake Smith Solicitors 08 September 2008

With will disputes on the increase, Rachel Baseley, associate at Wake Smith, discusses how disputes can be avoided and explains how negotiation is often the solution, rather than the courtroom.

At Wake Smith we have seen a large increase in the number of people in Sheffield disputing wills. In the past it is possible the British 'stiff upper lip' prevented people challenging or contesting wills but nowadays people are far more willing to challenge and less prepared to accept what they deem to be unfair. This is partly due to the influence of the US, where people are more ready to litigate.

Will disputes often arise because someone believes they have been either unfairly left out of a will or that a new will has been written by a person late in life and at a time when they lacked the mental capacity to do so. Alternatively, someone may claim that they actually own an asset included in the estate or that the will does not reflect a promise that had been made during the person's lifetime.

The most common examples of will disputes in the UK usually involve a spouse who disinherits his or her spouse in favour of a mistress or new partner, or parents who discriminate against their children in some way. This is often contested by clients who believe that one child is being unfairly favoured over another.

When a will is contested, in nine out of ten cases a dispute will be resolved by negotiation between the interested parties, avoiding the need for a costly court hearing.

Drawing up a will is a reality that none of us like to think about but there are a number of steps people can take when creating a will in order to reduce the likelihood of any disputes taking place after death:

  • Where a testator is very old or ill, relatives should consult a solicitor in advance about formalities for executing the will and obtaining medical evidence.

  • Ensure that witnesses to a will are reliable, competent and likely to live longer than the testator. If there is a dispute, they may be required to confirm their opinion of the testator's capacity.

  • If you marry, seek legal advice about a will. Marriage automatically revokes an earlier will.

A constructive resolution of disputes by negotiation or mediation will often be far less distressing than resolving the issue in court. It is also much more cost effective. If there is a full-blown court case usually the only party to win is the lawyers as there may not be much of the estate left once all the legal costs have been paid.



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