Information from this post comes from Sheena Hastings Battle of Wills...why the recession is leaving a new legal of legal conflict which appeared in the United Kingdom's Yorkshire Post and from Florida Probate Attorney and Co chair of the Broward County Probate and Trust section David Luber who compares some information in this article re will contests in England with Florida Will contests.
One London Probate Litigation law firm found that there were 228 will disputes dealt with by the High Court in London in 2008 compared with 83 in 2006 and the figures would be substantially higher since most will contest and probate litigation cases are settled.
Even before the economic slump she pointed out that society was increasingly resorting to probate and estate litigation with disputes over wills but as the values of many estates drops even more challenges and contests are being fought.
When the economy was strong with real estate and the stock market skyrocketing there were more estates worth fighting over. Now people are more desperate to inherit because of their own situations so despite the values of the estates falling the number of disputes and will contests has risen.
The downturn in the economy is further magnified by the fact that people are living longer and the costs of medical care has significantly increased so there is less in the estate. Additionally family situations are becoming increasingly complex and more people seeking to provide something for charity as well.
A solicitor there which the US would refer to as an attorney says that wills can be challenged based on the testator not understanding what they were doing due to mental incapacity or "because those with reasonable expectations of being beneficiaries (including spouse, partner, civil partner, children or other dependents) have not received anything or not enough. It is not seen as equiptable to ignore people who've had those kinds of relationships with you in your will."
While this is an interesting comment and may be the law in England as a Florida Probate Attorney I know that lack of mental capacity is a frequent reason to challenge a will and justifies bringing a Florida will dispute but that other than homestead rights of a minor children to a parents residence which is in the sole name of a parent children have no rights to estate assets merely by being children, spouses only have a right to a life estate in the primary residence if it is in the spouses sole name and may have an elective share right to 30% of the gross estate (including probate and non probate items) if there is no prenuptial agreement but otherwise there is legal basis for a wills contest merely since someone felt they did not get enough. Additionally a civil partner or adult dependents who are not named in a will have no right to receive any property from the decedent. A frequent cause of action in Florida is undue influence where a person is coerced by another they have a relationship of trust and confidence who then receives a larger share and the document becomes the influence of the other person not the one who is giving away there property. While a further discussion of undue influence is beyond the scope of this post it is interesting that they mentioned challenging based on not feeling they had received enough but not for that reason.
An additional issue the article brings up is the danger of using specific devises and the importance of revising a will if there is a significant change in circumstance. A case the womans law firm handled involed where the decedent intended their child to receive the majority of the estate and then provide for a charity so $40,000 in English currency was provided to go to the charity and the residue to the child. However the mom needed medical care and her home and some assets needed to be sold as a result leaving just $40,000. This is a reason it can be safer to use percentages, revise the will while the client still has capacity or at least provide after a certain amount goes to the primary beneficiary then it would have gone to charity. In this type of case if the decedent had been asked if they would have wanted that to happen and whether they would like to do a new will it is almost certain she would have but after the passing it is obviously to late. Had it said for example 80% goes to son though and 20% goes to charity then even if the estate had shrunck significantly as it did the son would still get the $32,000 pounds or whatever she wanted him to have.
Interesting to hear the stats and information from the United Kingdom although as mentioned a wills contest and estate dispute is handled differently in some respects in Florida and while a non contest clause seeking to prevent someone from disputing or contesting a will in Florida probate court is not enforceable a legal cause of action is required such as lack of mental capacity or other reasons not merely reasonable expectations or a sense that because someone fell into one of the categories mentioned would be entitled to sue for a share of the estate on some type of equitable ground. Estates pass to whom the decedent - testator provided for if there was a valid will or who the state of Florida provides if there is no valid will and expectations do not give the right to sue.