What are your options to resolve a will dispute?
Losing a mum or dad is never easy and things can become even more distressing if quarrels arise between siblings about who should get what from their parent’s estate.
This article highlights some of the main causes of inheritance disputes between siblings and explains how such arguments can best be avoided and/or resolved.
Dying intestate
It is essential to leave a will and keep it updated as circumstances change, not least because if someone dies without leaving a will, their estate will be distributed according to the strict intestacy rules under the Administration of Estates Act 1925.
Anything remaining after the deceased person’s spouse has taken their share (all personal property, the first £270,000 of the estate, and half of the remaining estate), will be shared equally between their children, irrelevant of the wishes of the deceased person.
If the parent was not married, the entire estate is shared equally between their children. This could cause sibling resentment, for example, if a child who was estranged from their parent receives the same amount as a sibling who cared for the parent and expected to inherit more.
Different amounts left to different siblings
A common cause of inheritance disputes between siblings is where a parent leaves one sibling more than the other.
Everyone is entitled to leave their estate to whomever they please in their will. However, if someone who is financially dependent on a testator (the person making the will) but is not adequately provided for, the will may be challenged under the Inheritance (Provision for Family and Dependants) Act 1975.
In addition, if a sibling has been promised a larger share of the estate but this was not actually specified in the parent’s will, they may be able to make a claim for proprietary estoppel.
Will validity
If someone is unhappy with the share they have been left in a will, compared to another sibling, and they are suspicious about the discrepancy, they may mount a challenge claiming that the will was not validly drawn up according to the Wills Act 1837. This Act requires a will to be signed, witnessed, made voluntarily and without duress, and made by a person of sound mind.
A sibling may, for example, claim that their brother or sister put undue pressure on the parent to draft the will in their favour. Alternatively, they may claim that the testator was not mentally capable of deciding who should receive assets in the will.
Such disputes can be negated if a doctor testified in regard to mental capacity and the will was drawn up by an experienced solicitor.
Mirror wills
Many married couples draw up mirror wills, leaving all of their respective estates to each other on death. Problems can arise with such wills in blended families where there are children from a previous relationship.
If a testator dies leaving everything to their new spouse, when that spouse dies all of their joint belongings would go to their children, leaving the earlier children of the deceased parent with nothing. The surviving spouse is also perfectly entitled to draw up a new will, bequeathing everything to their own children which would inevitably cause friction between stepsiblings as the original testator’s children would receive nothing.
Such stepsibling disputes can be averted if the testator drafts a bespoke will leaving specific amounts to their own children, or drawing up a will trust which gives a spouse assets or income from the estate during their lifetime, but then allows the testator to state who they want the trust property to pass to after the spouse dies.
Dispute resolution
Where a sibling wants to contest a will, going to court should be seen as a last resort, given the amount of time, money and possible adverse publicity such a course of action can attract.
Alternative dispute resolution methods which are usually less costly and time-consuming than court include mediation, collaborative law, or family arbitration.
These methods are also less confrontational ways of settling a dispute and afford the warring siblings privacy, making it more likely that the family rift can be healed.
Mediation sees an independent third party sitting down with the siblings and their legal representatives helping them to talk through their issues, without taking sides, until hopefully a resolution is found that all parties are happy with.
Collaborative law also involves a sit-down meeting between the siblings, but all the parties are accompanied by their own collaborative lawyer who will offer legal advice and possible solutions to the problem.
Arbitration may be appropriate if the rift between the siblings is more severe. As in court proceedings, a final decision is made by the arbitrator after hearing all the arguments and this decision is binding on all those involved. Parties do not, however, have to be in the same room during the arbitration process.
How a solicitor can help
Our team of dispute resolution solicitors advise on all sorts of inheritance disputes, including issues between siblings. They can outline all the grounds for a possible will challenge, suggest the most appropriate form of alternative dispute resolution and, if the case has to go to court, can handle all the paperwork, collate the required evidence, and offer legal advice, guidance, and representation in court.
For further information, please contact Helen Townsend in the dispute resolution team on 01733 882800 or email [email protected].
Helen Townsend LLB, Partner
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