This article is written by Shreya Pandey from Banasthali University. This article points out the common reasons for disputes arising out of wills and suggests ways to resolve it.

Introduction

Will is a document that states a person’s wishes about the distribution of his property after his death. It is important as it resolves the issues regarding the proportion and manner of distribution of his property after his death but there still can arise many disputes by the will. One of the major causes of the disputes is the increasing prices of the property and with it, the increasing greed and hunger for more money and property. Due to this, many disputes arise between the beneficiaries, trustees, and executors. The will may not necessarily solve all the issues as the maker of the will cannot foresee the disputes that may arise through it. It is not necessary that disputes regarding will arise only in high-class families, nowadays, in all levels of family disputes arise on the distribution of the property. So, it becomes important to note common disputes and find solutions to resolve them.

Common disputes and litigation regarding Wills

A will, if made carefully, would minimize chances of disputes, but still, there may arise few disputes after the death of the person. These disputes may be resolved by the cooperation of the heirs or by consulting advocates but a will that is clear and deals with all the perspectives of property and it’s distribution would itself minimize the chances of occurrence of disputes in the future. 

Certain common disputes are dealt hereunder:

Complaining about undue influence 

It is mostly seen that the heirs of the property are not satisfied with the declaration in the will as they think that while making the will the deceased was under some undue influence of friends or relatives. If the undue influence is proved in the court, the will gets invalidated. The undue influence on the deceased can be done in two ways: the deceased can be forced to make the declaration against his will, or the undue influence can be made peacefully by brain-washing the deceased in a way that he makes the will according to the will of that person.

Issues regarding the proportion

When there are more than one heirs and the will does not share the property equally then there might be chances that a dispute may arise. This disproportionate division of property leads to controversies between the family and the one who gets a lesser portion indulges into the dispute to get an equal proportion and division of the property. 

Unauthorized transfer of assets

If a person who is given the power of attorney or is an executor, transfers the property or moves funds from the bank account or through any action reduces the estate value, then the beneficiaries could argue that the transfer was unlawful. This dispute arises when someone without authority uses or removes the property’s value and reduces it. When the beneficiaries complain about it, the forensic accountants investigate upon it and if they find that the estate value has been reduced inappropriately, then the executor is removed from his position and his portion from the property would also get reduced. 

Invalid execution of the Will

One of the essentials to a valid will is its proper execution. The execution of a will requires sign and attestation as per Section 9 of the Wills Act. If it is not properly signed or attested its execution can be claimed invalid. Mostly the close ones lie and this can be checked through the shreds of evidence such as the presence of an earlier Will or, if the person died intestate, then the witnesses who attested the Will could be further questioned.

Incorrect drafting of the Will

Sometimes, Solicitor drafting the will does some error while drafting the will which doesn’t fulfill the wishes of the testator or includes some ambiguous provision which becomes difficult to understand and express the testator’s intention completely. These errors create a problem in the future after the death of the testator. 

Inappropriate use of power by the trustee

A trustee appointed by the testator has the power to manage the property after death. If the trustee misuses his power or discretion then the beneficiaries complain about the fact. The trustee has powers to decide how much and when and to whom the amount of the property be given. But this discretion can become a reason of conflict when the beneficiaries do not adequately get access to the property. This also arises when there is a conflict of interest between the beneficiaries and the trustee.

Testator’s mental incapacity

It is necessary that the person making the Will is of sound mind so that he understands the nature and consequences of making the Will. It is important to be mentally stable as people of older age usually are not mentally fit to make the testament. It is thus necessary that the person making the Will must have testamentary capacity. Testamentary capacity involves the capacity to understand the nature of the act of making the will, the property he owns, and the disposition of the property. 

Unfair use of the property by the beneficiaries

When there is more than one beneficiary to the property then there is always a fear in the mind of other beneficiaries that the others would misuse or tamper with the property to gain more profit. The beneficiaries sometimes act in a way so that they can get the profit unfairly but the executor or trustee, whosoever has the power, may ask the beneficiary to return the profit or ask for an injunction on that property.

Delay in administration by the executors

The executors are given the responsibility of disposing of the property among the beneficiaries according to the will of the testator. The executor must have the grant of probate. Since there is no time limit till when the executor must take action but it is generally interpreted that within a year he should do so, if he delays in his action then the beneficiaries may move to court to speed up the executor to obtain a grant of probate.

Lack of financial support to the dependents

The individuals who were dependent on the testator before his death and do not have any other financial support are entitled to get adequate means of support to live their life. If the WIll does not have provisions for proper financial support to the dependants then they can move to the court to address their situation so that they can get proper financial support from the estate. The Inheritance (Provision for Family and Dependants) Act, 1975 provides the provisions to give the portion in the property to the relatives and the dependants of the testator.

Inappropriate acts of the executor

The testator usually chooses the executor who is loyal and on whom the testator may rely upon. An executor is one who takes the responsibility of administering the property prudently and does not cheat or cause harm to the property. Sometimes, there are complaints regarding the inappropriate actions of the executors towards the administration of the property. If the executor is one of the beneficiaries to the property then there are chances that there may arise differences of opinion or conflict of interest between the executor and other beneficiaries. The complaint may be filed and the executor may be asked to stand down or he can be removed from the position of executor. The estate then gets winded up following the process mentioned in the Will.

Unfair Will

There is no right of inheritance in the country. The person who owns the property has the complete right to dispose of the property according to his will. So, if the dependents or the heirs do not get sufficient amount of estate then they can file a complaint as they have no other means of livelihood and the Will does not provide them with sufficient means of living thus it is unfair and it is important to be altered so as to provide them with a portion through which they can live properly.

Ways to avoid them

The disputes that arise out of the Will can be removed or avoided by a few ways such as, making a comprehensive testamentary, proper drafting by a solicitor, etc. The disputes can be resolved by foreseeing the reasons for disputes that may arise in the future and preparing such a document that may resolve it. Certain ways through which the conflicts may be avoided are:

Making a comprehensive testamentary

The Will must be comprehensive which includes all the aspects of the estate. The Will must be made in a way that it thinks of the future and the plans to deal with the property must be made earlier in a better way to meet the future needs of the family.

Seek legal advice

When such disputes arise regarding the estate, it is always helpful to go to an advocate and discuss the matter. The solicitor has the knowledge and experience to deal with the property cases so they can give the best advice. Through this, the dispute may be resolved without visiting the court.

Mediation

Mediation is a way by which both parties meet and discuss their points and come to a conclusion in which both parties are happy and satisfied. This process avoids moving towards the Court and also is a cost-effective way. This is one of the best and easiest ways to resolve the dispute between the parties.

Court Proceedings

If through mediation, the dispute cannot be resolved then the next step settle the dispute is to refer it to the court. The judges hear the arguments of both sides and give judgment accordingly which is binding on both the parties. In this case, the losing party has to bear the expenses of the successful party’s legal costs.

Rectification

An invalid will can be rectified and be made into a valid will. If there is any clerical error or the testator’s instructions are understandable then it can be rectified. The Court must consider the intention of the testator and work accordingly. If the court is of the view that through rectification the conflict can be solved, then it might order to rectify the document and convert it from an invalid to a valid Will.

In Marley v. Rawlings(2014) UKSC 2, Mr. and Mrs. Rawlings made a Will that made Mr. Marway the beneficiary, but due to fault in signatories, their son claimed to invalidate the Will and give the property to him by following intestacy rules. The Court heard the matter and considered that the will of both of them was to make Mr. Marley the beneficiary and not their son. So, the court ordered to rectify the document and validate it to give the property to Mr. Marley. 

Professional negligence claim

The testator presents his will in front of the solicitor and the solicitor drafts it into the document. The solicitor has many duties towards the testator as to draft the document properly, to check anything if missed or is not important, to correct all the errors, to evaluate the property, to send the will for signature and then to check that all the requirements are fulfilled and the will is executed properly. Sometimes, there are cases where the solicitor negligently commits a mistake that changes the whole meaning of the Will and becomes a reason for a dispute.

If rectification is not possible in the document then it means that there is some error in drafting. So, the alternate step could be that a claim of professional negligence to be made on the solicitor who drafted the Will erroneously. In, Humblestone v. Martin Tolhurst Partnership (2004) EWHC 151 (Ch), a solicitor was hired to check whether the will was properly executed. He sent the will to the testator and when he got the will back he didn’t notice that the testator had not signed it. The claim was made to the High Court where he was found guilty of professional negligence. 

Conclusion

The increasing value of property leads to an urge to get a bigger portion of the property. This urge creates conflicts between families. A person who dies making a will mentioning the portions of the estate to the beneficiaries is not alive to settle or resolve the conflicts that arise after his death while dividing the property. Thus, many people misuse or misinterpret the document and use it for their profit. The conflicts that arise are mostly to get a portion of the property or to get a bigger portion. When the family members stay united and satisfied most of the reasons for the dispute would automatically end. The problems and conflicts are never-ending, the only way to deal with them is to try to resolve them in an applicable and effective way. The best way to reduce the conflicts is to foresee the situations that may arise in the future and make the Will accordingly in a comprehensive, complete, and in unambiguous way. 

References

1. https://vakilsearch.com/advice/five-common-will-related-disputes-can-resolved-easily/
2. https://www.owenhodge.com.au/blog/common-will-disputes/
3. https://www.raworths.co.uk/articles/the-top-10-most-common-disputes-relating-to-wills/
4. https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog/common-problems-with-wills-and-how-to-fix-these
5. https://www.smithpartnership.co.uk/articles/inheritance-disputes-common-causes-solutions

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