Keeping legacies in the family and out of court

Inheritance challenges and disputed wills are soaring, but it’s not just the high profile, wealthy that are fuelling the action.

Figures from the Ministry of Justice come against a backdrop of headline-catching disputes such as the case of Russian tycoon Vladimir Alekseyevich Scherbakov, who died in 2017, leaving his entire estate to his Swiss-born partner Brigita Morina and the children they had together.  A challenge by children from his previous marriage saw Morina pitched into battle over his £100 million estate, before winning the case in the High Court.

The number of disputes reaching the court has more than doubled in the past decade, according to data released by the Ministry of Justice.  In the latest figures, 195 disputes went in front of judges in 2021/22, up from 145 in 2017, and from just 80 in 2012.  According to specialists, this is only the tip of the iceberg with most disputes settled out of court. 

“The soaring number of disputes is being driven by a combination of factors,” explained private client expert Charlotte Hatcher of Martin Tolhurst Solicitors: “There is greater awareness of the right to challenge wills, highlighted through news coverage of high profile cases like that of the Scherbakov family, but also because of the changing shape of family structures.  Blended families, involving second marriages and stepchildren all lend to the complexity.  

“Importantly, growth is being fuelled by high property values, which means there is more at stake, more to fight for.” 

This is endorsed by figures from HM Revenue and Customs, which is set to record its highest ever inheritance tax receipts for the current financial year at some £7.5bn, reflecting the increased size of estates being passed on. 

The increasing rates of Dementia diagnoses is also helping fuel the rise in the number of inheritance disputes, with those missing out arguing that individuals were not mentally capable or had been influenced by those caring for them. 

In one recent case, a daughter is fighting the former paid carer of her father over a will drafted in his final year.  Having married her 11 months before he died aged 94, he left the whole estate to Guixiang Qin.  Robert Harrington’s daughter has accused Qin of exerting undue influence over her father and argued that he did not have the necessary capacity to make the revised will.  

Explained Charlotte: “This case alleges what’s known as a ‘predatory marriage’, where someone marries a vulnerable, probably elderly person, to secure an interest in their estate.  Where families suspect any undue influence, it’s best to take action sooner, rather than later. 

“For example, they should ask for a mental capacity assessment if they expect a new will is being made.  It’s vital in such cases that a full assessment of mental capacity is made and recorded when the will is drawn up.  Any specialist lawyer will know to do this.”

The value of estates can be hit hard when a challenge is made, and distribution of funds will be halted as families fight. 

“Too often, the disputed funds are consumed by the cost of fighting the will, and it’s far better to get affairs in order well in advance, and to look for ways to satisfy family over any decisions that may otherwise be contentious.” Charlotte Hatcher added.  “The use of will trusts to protect the interests of children from earlier marriages can be a really valuable tool”

“A property and financial Lasting Power of Attorney is a useful lifetime document that will cover how financial affairs are to be managed if the donor requires assistance in their lifetime and also in the event of lack of capacity. If an individual does lack mental capacity, the Health and Welfare Lasting Power of Attorney ensures that decisions are made by trusted individuals appointed by the donor themselves.”