Why it’s time to talk about wills

How to ensure your legacy is beyond dispute, by Stephanie Hepburn, partner at Shepherd and Wedderburn

When someone passes away, emotions will often run high among family members. One of the last things they will want to face is a dispute over what has been left behind in the estate.

Unfortunately, we are seeing an increase in executry disputes as a result of the deceased not having a will in place, having one that does not reflect their wishes, or a will that has not been updated to reflect changes in family and circumstances.

A survey by UK charity Will Aid last year revealed that53 per cent of people in Scotland do not have a will. The same research found that 10 per cent of respondents did not consider their will reflected their current wishes. Reasons given for not having a will, or not updating it, included not being able to afford to make one, feeling too uncomfortable to talk about death, or presuming their loved ones would automatically inherit their assets regardless.

In recent years, there has been an uptick in disputes over estates between beneficiaries, executors, or other family members, and challenges to wills have become more commonplace.

There are various reasons for this trend. For example, there are more “blended” families where children from different relationships are involved, and property ownership is more widespread, resulting in larger and more valuable estates. Such factors –combined with an ageing population, a rise in cross-Border estates, the use of DIY wills, cost of living pressures, and greater public awareness of legal rights and remedies (thanks in part to the internet and television coverage) – have contributed to the growth in disputes.

Commentators believe as many as 10,000 people are contesting wills and estates annually across England and Wales. While figures aren’t readily available for Scotland, evidence shows there is also an increasing number of these types of disputes here.

However, it is important to note that the legal position differs north and south of the Border in a number of important respects.

One such difference is in relation to formal validity of a will. While Section 9 of the Wills Act 1837 applies in England and Wales, the principal rules on executing Scots law documents –including wills – are found in the Requirements of Writing (Scotland) Act 1995. In England and Wales, a will must only be signed on the last page and witnessed by two witnesses to be valid, whereas in Scotland, it must be signed on all pages and only needs to be signed before one witness.

Another key difference is that in Scotland spouses and children are automatically entitled to a share of the estate – regardless of the will – with a system of “Prior Rights” and “Legal Rights” enshrined in the Succession (Scotland) Act 1964. This means it can be much more difficult to disinherit your spouse/civil partner or children here, but disputes are nonetheless still common, particularly since Legal Rights entitlement only applies to the moveable estate of the deceased, such as cash and shares, not to any heritable property , such as buildings and land.

In England and Wales, there are no automatic succession rights and instead a claim must be made for “reasonable financial provision”, under the Inheritance (Provision for Family and Dependants) Act 1975, by a disgruntled spouse, civil partner, former spouse/civil partner, children or cohabitant.

In Scotland, cohabitants can also make a claim for financial provision under the Family Law (Scotland) Act 2006. It is important that potential claimants act quickly to take advice on potential claims in both jurisdictions as there are strict time limits.

In terms of potential grounds to challenge a will, these are largely similar in both jurisdictions and include, for example, when it is thought the will is not formally valid; the testator did not have capacity at the time they signed it; that they were taken advantage of when putting it in place, or that the will is fraudulent. If a dispute does arise, a challenge ending up in a lengthy and expensive court battle, with further upset for everyone involved, should be avoided at all costs. In cases my firm deals with, our dedicated contentious executry, trusts and tax team takes an empathetic and pragmatic approach to dispute resolution, including encouraging our clients to consider alternative methods such as mediation, which can be particularly effective and often quicker, less costly and certainly less adversarial than litigation. This is particularly important, given that – in most cases –there will be close family relationships and a shared desire to preserve them.

My advice is to have family discussions about inheritance early, and not to feel embarrassed about it.

For the reasons described, the expectation is that executry disputes will continue to become more prevalent, but early and frank family discussions on the subject can avoid this.

This, coupled with taking succession planning advice – which can include discussions with your solicitor, accountant, and financial planner – and putting a will in place, should help to minimise the risk, insofar as possible, of costly, lengthy, emotional and, in many cases, entirely unintended family disputes after you pass on.