Having specialised in probate disputes for over 15 years I have seen far too many family members fall out over the Will of a loved one; usually, but not always, they struggle to accept that they have been left out of a Will or they are convinced that someone else is getting more because they believe this person has exerted some sort of influence over the testator/deceased. When trying to identify the root of their concern(s) I have found that it very often boils down to what the testator might have told them in the past or simply because the testator was secretive and/or gave mixed messages to this person during their lifetime.
I recall making this observation early into my career when I worked as a contentious probate and court of protection specialist solicitor at my former firm Wright Hassall. However, it has equally been the case with the clients I have acted for since joining Sydney Mitchell, as head of the contentious probate and court of protection team, earlier this year.
So what should be people do to avoid such disputes from arising in the first place? Clear communication between the testator and his/her family, particularly around the time a Will is made will go a long way to minimising the risk of a dispute when the testator dies. Whilst a Will is personal to the testator, being open about it can prevent expensive and hostile litigation in the future. I am fairly sure that when someone is making a Will the last thing they would want is for their loved ones to enter into a legal dispute over what the testator may or may not have intended when making the Will.
I fully accept that it can sometimes be awkward to discuss such matters with certain members of the family at the time the Will is made, especially if the testator wishes to exclude someone from the Will. This is why it is also good practice for the Will to provide an explanation as to the reason for excluding someone from the Will and/or where someone will get more than other loved ones. By ensuring effective communication at the time the Will is made, after the Will is made and within the Will itself you reduce the likelihood of a bitter dispute arising once the testator has died.
Here, at Sydney Mitchell Solicitors, we try our best to avoid these types of conflicts by ensuring we have very talented lawyers advising on the preparation of Wills. However, when things go wrong and family members fall out over a Will, we also have our equally talented contentious probate lawyers who will do all they can to avoid any unnecessary escalation of the dispute. If it is too late and the dispute turns litigious then our lawyers will be totally focused on fighting our client’s corner and ensuring our client’s interests are fully protected.
Besides advising on contentious probate matters, I also advise attorneys, deputies and families on how to best protect a vulnerable individual who has lost the capacity to manage their own affairs. With an ageing population, financial abuse is on the rise and I help clients identify such abuse and deal with contested Court of Protection applications including those involving the removal of attorneys and deputies, statutory wills and gifting of large sums.
Mitra Mann joined Sydney Mitchell in June 2023 and has been a specialist in contentious probate disputes for over 15 years. Mitra has also trained as a Dementia Friends Champion dedicated to raising awareness on mental capacity issues locally and nationally. She is also writing a book on “Gifting in the Court of Protection” to provide guidance to professionals and lay attorneys and deputies. This is due to be published by Law Brief Publishing Ltd by the end of 2023.
By Mitra Mann, Senior Associate, Head of Contentious Probate, Sydney Mitchell LLP