Strife after death: the rapid rise of will-related disputes

This article was first published in The Herald.

If your knowledge of disputed estates is based on tabloid press stories or TV shows such as ‘Succession’ and ‘Inheritance Wars’, you might think that they all involve feuding families and bitter sibling battles over huge sums of money. In fact, many do not. For example, some arise simply because executors cannot agree. And after the houseprice boom seen over the last forty years, you don’t have to be a successful entrepreneur to leave an estate that people might feel is worth arguing about.

The number of such disputes has been rising for some time. Figures for Scotland are not available, but a recent study in England & Wales by the legal-analytics company Solomonic found that probate claims listed at the High Court had increased more than fivefold over the past ten years. I believe that the situation in Scotland is broadly similar.

A look at the probable causes suggests that this trend is likely to continue. They fall into two categories: circumstances and incentives.

Social changes are leading to more complicated family situations, which can increase the potential for disagreement and dispute. It is now common for families to include step- and half-siblings from previous relationships, as it is for children’s parents to be together but neither married nor in a civil partnership. We also see more people living fluidly across more than one country (and therefore multiple legal jurisdictions). This increases the risk of disputes, as it can make it difficult to establish the key issue of ‘domicile’ that may determine how an estate is distributed.

The increase in average life expectancy is obviously welcome, but it has led to more situations in which someone’s mental capacity is questioned – a key issue in many disputes over wills.

Another factor is that it is not unusual for people in their 70s and above to own valuable unmortgaged properties, and possibly significant other assets as well. The bigger those portfolios get, the more likely they are to have complex structures, again increasing the potential for legal complications and differences of opinion. (And the rise of AI wills, although it has not had much effect yet, may well lead to more disputes in the fairly near future.)

These bigger legacies also change the incentives. People who feel that they have been hard done by are more likely to consider that it is worth formally contesting a will – particularly as the flipside of the houseprice boom is that, for many younger people, an inheritance greatly increases their chance of getting onto the property ladder. Launching a dispute is now easier: a quick google search will reveal a plethora of advice on the subject. And it may be that a cultural change is also important here: it appears that the social stigma of launching legal action against family members is considerably smaller than it used to be.

No-one can predict the future, of course, but it seems likely that at least some of these underlying trends will continue for some time yet and will lead to more disputes over wills, especially as there are various ways to do this. I’ll look at them in more detail in a second article next week.

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