Lawyer Monthly Magazine - February 2019 Edition

FEB 2019 33 Expert Insight www. lawyer-monthly .com an aging population, the ‘dementia time bomb’ as it is now termed, is likely to feature in more of our cases. Individuals involved in disputes will allege that their loved ones could not possibly have prepared and executed a will if they had dementia, even though it is possible to do so when lucid bouts occur. Lawyers who draft wills will have to become more aware of this when taking instructions, to ensure that they protect the estate and the wishes of those who have instructed them, as well as beneficiaries that they leave behind. We have also been instructed this year on a growing number of financial abuse cases where trustees or attorneys have mismanaged funds for a beneficiary or a loved one. This can involve small sums and in some cases very substantial sums of money. Often the breakdown of trust in this way can lead those who have been affected to feel let down and it can create conflict. The Will Writing Industry in 2018’ report found that 45% of the UK now have a Will, this has increased by 6% from the 39% recorded in 2017 2 . Following from above, what do you think can be done to minimise these issues? I always tell clients to try to talk to each other. For those preparing wills, I would always advise clients to try and be open with their families so that they can understand why certain plans have been made. This could clear up a number of concerns and doubts that family members can have about being loved, favoured or unloved if the will or the trust does not deliver what they expected. After death, there can just be misunderstandings between families which, if discussed, could help to move matters forward. However, often there have been underlying issues for years which only often come to the surface after a death, almost as if that one person was the character who held the family together and effectively “keeps the peace” For those preparing wills, I would always advise clients to try and be open with their families so that they can understand why certain plans have been made between everyone; if they are no longer around, it is hard to avoid a conflict in those circumstances. What developments in contentious trust and probate do you think could be made, in order to make common disputes easier to solve? If cohabitees could be given a status that is higher than they currently have in law, that could assist with such claims. Currently, cohabitees are not provided for at all under the intestacy rules if there is no valid will in place. If they have to bring forward a claim for financial provision, they have to demonstrate that they were maintained by the deceased prior to their death and that any claim is limited to their maintenance needs only. A spouse has much greater protection under the law and can expect to achieve substantially more when in fact other than the marriage certificate, the practical way in which the relationship works is the same as if the parties were not married. The number of contentious probate cases are on the rise; why do you think this is? There are a number of factors which I will try to make as clear as possible. Nowadays, most estates contain a property and with the increase in property values, there is more to fight over because even with the smallest of estates, an inheritance can make a difference to someone’s life. However, this is impacted by the 75% of people aged over 54-years who do have a Will. We now also have more complicated family arrangements these days. Second marriages are often a source of conflict if there are children from the first marriage who expect to inherit from their parent, whilst the new partner/spouse also expects to be provided for when there is a death. These disputes are widely publicised; there have been a number of highly publicised celebrity cases which highlight how wills and trusts can be challenged.