Niamh Wilkie | New Law Journal: Thoroughly Modern Will Disputes

Niamh Wilkie writeS for New Law Journal, published 30 June 2023. Click here to view the article on New Law Journal's Website (via subscription service only).

In Brief

• Increasingly, couples are cohabiting instead of getting married. 
• Families are more likely to be blended.
• This can create complications and disputes related to inheritance and wills.

There has been a rise in the number of will and inheritance disputes in recent years. This piece seeks to discuss some of these reasons with reference to case law to demonstrate the way in which these matters come before the courts, and what practitioners can learn from these cases.

Lack of protection from cohabitation

Nowadays, more and more couples cohabit rather than get married. The Office for National Statistics confirmed that in the UK in 2022, one in five families are cohabitating-couple families. Often, couples believe in the existence of ‘common law marriage’ in the UK if they have cohabitated for a certain length of time. As such, they believe they are protected by this notion for inheritance purposes if their partner dies. The reality is that cohabitees are afforded little protection by the law, and if a will is not in place, a cohabitee will receive nothing from their partner’s estate and may have to resort to pursuing a claim for financial provision from the estate.

In the 2018 decision of Thompson v Ragget and others [2018] EWHC 688 (Ch), [2018] All ER (D) 18 (Apr), a 79-year-old woman sought reasonable provision under the Inheritance (Provision for Family and Dependents) Act 1975 (I(PFD)A 1975) from her late partner’s estate. Before his death in 2017, he lived with the claimant for 42 years. Throughout this period, she had been financially dependent on him. The deceased also made a number of wills over the years which made provision for the claimant, but his most recent will did not.

In his last will, he left his estate of £1.5m to tenants of his properties. The deceased did not trust the claimant’s children and did not want them to benefit from his estate. He also believed the claimant would reside in a nursing home and therefore wouldn’t need provision from his estate. The court granted the claimant’s application for the deceased’s cottage to be conveyed to her and she also received a monetary award to cover the cost of adapting the cottage and the cost of a care package and general outgoings.

“ The reality is that cohabitees are afforded little protection by the law”

No financial provision: spouses & adult children

There are instances where a will leaves no financial provision for a party despite their commitment or care towards the deceased. One example is the case of Re estate of Singh (deceased) [2023] EWHC 304 (Fam), [2023] All ER (D) 55 (Feb). This case concerned a widow who was disinherited by her husband of 66 years, who wished to pass his estate exclusively to his male heirs. The widow brought a claim under I(PFD)A 1975 for reasonable financial provision from her deceased husband. The claimant sought half of the estate, which she estimated at £995,000. The will left the estate in equal shares to two of the children, who were the named executors, excluding the claimant and the other four siblings.

Mr Justice Peel had to consider whether the will had failed to make reasonable financial provision for the wife, and if so, what the provision should be. Weighing up the relevant factors, the court determined that the deceased’s estate did not make reasonable provision for the wife given the duration of the marriage and the fact that she had made a full contribution during the marriage when all the assets accrued. It was ordered that the wife receive 50% of the net value of the estate.

The case is a reminder that while individuals are free to bequeath their estate as they wish, this freedom is likely to be balanced against avoiding injustice to ensure that those most vulnerable are not disinherited where they have clear needs. Such cases are likely to lead to an Inheritance Act claim.

Another case involving no financial provision is Dignam-Thomas and another v McCourt and another [2023] EWHC 546 (Fam). This case concerned two adult children, aged 61 and 68, who sought reasonable financial provision under I(PFD)A 1975 from their deceased father’s estate. The sole beneficiary under their father’s will was their brother, aged 72 (second defendant), who did not engage in the proceedings at all. The estate consisted of the property where the deceased had lived, and the second defendant remained living there. Prior to the deceased’s death, he had several ailments and his two sisters provided him with physical and financial support.

In support of their case, the first claimant detailed the financial support provided by the deceased over the years, including after her divorce from her first marriage, as well as household and car-related costs and financial payments to keep the business she ran together with her second husband going after it fell into financial difficulties. It was her case that there was a ‘two-way street of kindness and to help out’.

The second claimant, who had adult children, was almost blind and had multiple other health problems. Although her adult children cared for her, this was not sustainable in the long term. It was her case that she needed care and assistance for six hours a day, and this was found not to be unreasonable. Her relationship with and financial dependency upon the deceased were similar to that of the first claimant.

It was held that the will did not make reasonable financial provision for the claimant adult children. It was also noted that the deceased had said that he intended to make provision for them and provide a home for their brother, but the will only benefitted their brother. Ultimately, there had indeed been a two-way street of support between the claimants and the deceased, and the deceased had financially provided for them.

The court therefore awarded the first claimant £70,000 and ordered that the second claimant should receive £90,000. While the second defendant, the brother, did not participate in these proceedings, the judge was satisfied that the deceased wanted to secure housing for him, and he received the balance of the estate totalling £173,000.

This case, like Singh, highlights the courts’ willingness to provide provision where there is a need for it where a party has contributed and had some sort of dependency on the deceased.

Increasing assets & intestacy

The number of inherited estates worth more than £1m in the UK has increased by more than a third in five years. The larger the estate, the more potential beneficiaries to argue. There has been a significant increase in the attempts to block probate as it rose by 37% in 2021. In 2021–22, inheritance tax receipts received by HMRC were £6.1bn, representing an increase of 14% on the amount paid in the previous year.

The increasing value of estates is a contributing factor to the appetite of people wanting to bring such claims. Despite increased awareness of the potential pitfalls of not having a will, there remains a large proportion of people who do not have one in place: more than half of adults in the UK do not have a will.

Blended families

Approximately one in three families in the UK are now ‘blended’, meaning they have a combination of parents, new partners, and children from different relationships. A 2021 survey conducted by the Society of Trust and Estate Practitioners found that blended families are now commonplace, with 96% of respondents now advising this type of family and threequarters seeing an increase in the number of blended families they work with over the past ten years. Blended families can create complex financial planning issues as a result of a person’s wealth not passing to its intended recipient in the event of a family member’s death.

One common issue that can cause significant difficulties as a result of blended families is the traditional wording used in respect of referring to children in a will. What specific wording should be used in a will to ensure stepchildren are included? Are there any terms or vague wording which should be avoided?

In a 2015 decision of Reading v Reading [2015] EWHC 946 (Ch), [2015] All ER (D) 64 (Feb), the High Court considered whether a reference in a will to ‘issue of mine’ included the deceased’s stepchildren. The court concluded in this instance it should include them because there was clear evidence that the testator and his wife intended to treat their children from previous marriages equally and they had mirrored wills.

In order to avoid such litigation, the most effective way to identify intended beneficiaries is to expressly name them as opposed to using traditional references such as ‘my children’, ‘issue of mine’, or ‘my descendants’. Alternatively, you should explain towards the beginning of the 

Niamh Wilkie is exclusively a family law barrister at 5SAH. She holds a specialist qualification in international arbitration. Niamh is also qualified to accept direct access instructions.