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COVID-19: An increase in challenges to Wills and inheritance claims?

Posted on 29 June 2020

As we emerge from the COVID-19 lockdown, it is still too early to fully know what effect the pandemic (and the changes it has brought about) will have with regards to challenges arising from a deceased's Will or devolution of their estate under the intestacy rules. However, we can now identify some of the potential consequences.

Will challenges

Due execution

There are various ways in which a Will can be disputed. One is where it has not been validly executed. This is an issue which probate practitioners have been keeping at the forefront of their minds recently, given that the restrictions imposed during the pandemic have made it more difficult for many, particularly those who have been shielding, to execute their Will in accordance with the requirements of the Wills Act 1837. Social distancing is not something testators previously had to worry about when executing their Wills, and it was unlikely to have been considered in 1837 when the Wills Act was drafted.

The Wills Act provides that, in order for a Will to be validly executed, it must be signed by the testator, in the presence of two witnesses who also sign the Will in the presence of the testator. In practice, it is common for all three people to be in the same room, possibly sitting round the table and sharing the same pen. The recent Government guidelines regarding social distancing added a logistical challenge for those trying to validly execute their Will. Throw into the mix a sense of urgency  felt by many (there have been anecdotal reports of a spike in the number of people wishing to create new Wills) and the risk that testators may have tried to take shortcuts, will result in a Will that has not been validly executed and so open to challenge.  

Testamentary capacity and knowledge and approval

Where there may be a question as to whether the testator has capacity to make a Will, the so-called "Golden Rule" is that the solicitor should ideally arrange for a medical practitioner to satisfy themselves of the testator's capacity and to make a contemporaneous note of their examination and findings.  Although this isn't a formal requirement, it can help to resolve potential disputes without court proceedings.

In the recent climate, the pressure to execute a Will quickly, or potentially the unavailability of suitable medical practitioners to give a medical assessment of someone's testamentary capacity to make a Will, could mean we see arguments being made that the Golden Rule was not followed and that the testator did not have capacity to make the Will. A Will may also be challenged if it is shown that the testator did not know and approve their Will. Circumstances such as the Will being executed in haste and not in the presence of a solicitor or with the benefit of a face to face meeting with a solicitor may, in some cases, give rise to disputes about knowledge and approval of Wills.  

Undue influence

Since March, social circles have closed in or been disrupted and many people have been restricted to seeing only those in their household. Many elderly and vulnerable people have been shielding, having minimal contact with the outside world; some of these are completely reliant on the support of family, friends, neighbours and carers for food, medication and social interaction. This has created a situation where elderly and vulnerable people could be more susceptible to adverse influences, with fewer opportunities for these to be identified. 

If a testator is pressured into leaving their estate to a certain person, for example, it can give rise to a challenge to the Will on the basis of it having been executed due to undue influence. This is a difficult argument to successfully make, as there is a high burden of proof to overcome, but these exceptional times may create an increase in instances of a testator's Will being overborne.

1975 Act claims

There could be a number of reasons why a person's last Will (or absent a Will, the intestacy rules) doesn't provide adequately for all of their dependants when they die. In recent times, it may be that someone wanted to make a Will but were not able to do so, or they had a Will, but for the reasons mentioned above, their Will may not be valid and so their estate may pass under their previous Will or under the intestacy rules.

In this scenario, if someone within the categories of people set out in the Inheritance (Provision for Family and Dependants) Act 1975 (which includes a surviving spouse or civil partner and children, among others), finds themselves facing a situation where the deceased did not make reasonable financial provision for them, they may consider making a claim under the 1975 Act. It is possible that practitioners could see an increase in such claims in the near future.

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