A recent survey by Will Aid found that 59% of people in Scotland do not have a will. The same survey found that 10% did not consider their will to reflect their current wishes. There were a number of reasons cited, including financial pressures and feeling uncomfortable about death.
While it may be daunting to think about death, we are seeing a rise in executry disputes and not having a will, or having a will which does not reflect your wishes, is one of the reasons for this increase. Other reasons exist, too.
Family dynamics are evolving, with “blended” families prevalent in today’s society. Property ownership is now commonplace, resulting in larger and more valuable estates. Personal wealth is also rising, which brings with it the potential for conflict, particularly when an estate incudes valuable assets such as investments or shares in family business which can be difficult to divide equitably.
These factors combined with an aging population (which can lead to capacity-related disputes), the rise in cross-border estates, the use of DIY wills, and a cost-of-living crisis, can add layers of complexity and emotion to the distribution of estates, with increased potential for disputes.
People are also more aware of their legal rights – for example, the entitlement of spouses and children in Scots Law to inherit from family members whether there is a will or not – and if people do not believe a will makes reasonable financial provision for them, they are more likely to claim their legal rights. However, legal rights apply only to the deceased’s moveable estate, and if the estate is mainly heritage, or it is felt that the amount which a spouse or child would receive if they claimed their legal rights is significantly less than, say, a prior will, challenges to wills can also arise.
The internet has a part to play in this increasing awareness – not only can it be the root cause of disputes in some cases (such as social media feuds among family members), but many people are much more informed of their potential options from a quick Google and are seemingly more likely to reach out for advice and to take action.
Another increasing source of disputes is the fact that many people leave it very late in the piece to put a will in place. This is often when they are very elderly or where they have terminal health conditions. This may provide others with an opportunity to challenge the will (rightly or wrongly) on the basis of an alleged lack of capacity, undue influence, or facility and circumvention. If the will had been put in place sooner in many of these cases, the potential grounds of challenge may not arise. This shows the importance not only of having a will in place, but ensuring that it is done as soon as possible.
Of course, disputes do not occur just between beneficiaries. Tensions among executors may need to be resolved, such as where executors cannot agree and an impasse is reached. There may be allegations of negligence and breach of trust against an executor. Issues can also arise as a result of lost or poorly drafted wills and unidentifiable beneficiaries.
As these trends continue, it is likely that executry disputes will remain a live issue and our dedicated contentious executry, trusts and tax team can advise on the various methods of resolving disputes, from litigation to alternative dispute resolution methods such as mediation.
Please contact Stephanie Hepburn for more information.