By Richard Cussell

Solicitor, Director

With the arrival of Covid-19 in early 2020 and the extensive disruption it has caused to everyday life, solicitors have reported a significant increase in people making Wills. As the virus continues to cast uncertainty over the future, people are understandably thinking about putting their affairs in order, just in case the worst should happen. However, with this greater demand for Wills comes a greater risk of Will disputes.

Making a Will in the traditional way has become extremely challenging because of the national restrictions and guidelines introduced to try to control the spread of Covid-19. Testators (the person making the Will) and their advisors are facing a variety of problems, including:

• Difficulties complying with signing and witnessing requirements (particularly where the testator is shielding or self-isolating)
• A rise in deathbed and bedside Wills
• Economic uncertainty

As well as these issues, people may be more likely to challenge a Will because of financial insecurity. Even before Covid-19, 1 in 4 people stated that they would challenge a Will if it did not suit their interests, despite court disputes being expensive and stressful for grieving families. This is most likely due to rising property prices pushing up the value of estates – people are more prepared to make a legal claim where large sums of money are involved.

Now, with Covid-19 battering the economy causing business closures, job losses and pay cuts across multiple sectors, people are more likely to be having money struggles. For these people, an inheritance could make all the difference.

When can you challenge a Will?

A Will must fulfil strict legal requirements to be valid. If a Will is successfully challenged, the court may order that certain parts of it should be ignored or the whole document set aside. The following are grounds for challenging the validity of a Will:

• Administrative issues – the Will was not validly executed, for example, it was not witnessed properly
• Lack of knowledge or approval – the testator did not fully understand the Will or know what was in it
• Lack of testamentary capacity – the testator did not have sufficient mental capacity to understand what making a Will meant or its effect, for example, because of a brain injury or illness such as Alzheimer’s disease
• Undue influence – the testator was forced, coerced or influenced by someone else into making the Will
• Fraud/forgery – for example, the testator was misled into believing untrue facts when making the Will
• Professional negligence – for example, the solicitor or advisor helping the testator gave them incorrect or misleading advice or did not execute the Will properly. Depending on the situation, you may be able to make a claim to rectify the Will or, if it is unclear, apply for a decision about its construction. If not, you may be able to claim professional negligence compensation

You can also challenge a relative’s Will if you have been left out of it or not left as much as you need. This is referred to as an “Inheritance Act Claim”. Under this type of claim, you may be able to get “reasonable financial provision” from the deceased person’s estate. Inheritance Act Claims can also be brought if the deceased person died without leaving a Will (died intestate).

Will Covid-19 cause more Will and inheritance disputes?

Will and inheritance disputes are already rising year-on-year but Covid-19 is expected to cause a further spike in Will and inheritance disputes for many reasons:

Lockdown Wills

When the entire country went into lockdown in late March 2020 and social distancing measures were introduced, a number of problems arose for testators, such as:

• How can you get a Will validly witnessed if you are not allowed near the witnesses?
• What if you are shielding or self-isolating and cannot leave your home or receive any visitors?

Faced with these problems, testators began to get more creative, such as getting their Will witnessed through a glass window or in a garden at a safe distance. However, Wills made in this way may be open for challenge, for example if:

• Someone can prove that the witnesses did not have a “clear line of sight” to the signing of the Will document
• The testator had no choice but to use their family members as witnesses (witnesses should not be related to the testator as they likely cannot receive any benefit from the Will)

Fortunately, the Government has addressed one major lockdown Will problem. At the end of September 2020, the law was changed to allow people to make Wills using video link software such as Zoom, Skype or FaceTime. So long as the witnesses have a “clear line of sight” to the document, Wills made in this way are completely valid. The law has been backdated to 31 January 2020 to help anyone who had no other choice but to make a Will this way during lockdown, such as people in self-isolation.

In theory, making a Will via video link should be safe from challenge. However, some commentators have expressed concerns about the risk of undue influence claims arising from video link Wills. For example, because it is harder to tell whether someone off-camera is putting pressure on the testator.

Vulnerable testators and undue influence

Undue influence occurs when someone pressures or coerces the testator into making or changing their Will, usually to suit their own selfish interests and secure themselves an inheritance.

Elderly and vulnerable people are most at risk of being pressured or coerced into making a Will, particularly if they are shielding or self-isolating due to Covid-19. Because of the virus, vulnerable people are more dependent on the kindness of others; a perfect opportunity for someone to take advantage. From beloved grandchildren to friendly neighbours – it is usually the people closest to the vulnerable person who are responsible for undue influence.

DIY Wills

There is no telling how many people may have tried to make their own Will during lockdown. Whether they were shielding and had no other choice or they simply decided to take matters into their own hands, making a DIY Will can be incredibly risky.

The problem with making a Will without the help of a qualified solicitor is that it is more likely to contain errors or be successfully challenged for issues such as undue influence. For example, if you helped a terminally ill relative make a Will without a solicitor because they were worried about dying before the end of lockdown, someone could argue that you unduly influenced them or that the testator did not have the mental capacity to make a Will.

 Economic uncertainty and inheritance claims

 One of the interesting results of the 2008 financial crisis was a rise in claims under the Inheritance (Provision for Family and Dependants) Act 1975. When the economy is under pressure and individuals are facing financial difficulties, they may be more likely to seek financial provision from a deceased relative’s estate.

Due to Covid-19, we are facing another serious financial crisis which could once again cause claims for inheritance to rise significantly. However, Inheritance Act claims have already been on the rise for several years so it will be difficult to tell how many can be directly attributed to the Covid-19 crisis.

 Speak to a specialist solicitor to avoid the risks of a Will or inheritance dispute

Seeking the advice of a specialist contentious probate solicitor is the best thing you can do to avoid the risks of a long, expensive Will or inheritance dispute. For example, a solicitor can:

• Provide advice on the validity of your Will (particularly if it is homemade) and whether it is at risk of being challenged
• Provide advice if you have concerns about a relative’s Will, for example, if you think they were under undue influence or not in the right state of mind to make a Will
• Provide advice about claiming an inheritance if you were left out of a Will or not left as much as you need
• Help you take legal action if you have a claim or defend any claims against an estate you are administering

For expert advice about all types of Will and inheritance dispute, please contact our friendly contentious probate solicitors in Wells, Street or Somerton.