Could your family fall foul of the inheritance wars?

By Jessica Beard For The Daily Mail21:51, 14 Feb 2023 , updated 10:20, 15 Feb 2023

Did you know that a surviving spouse can make new will after death of a partner without constraints. Here's advice on how to protect your inheritance.

When Clive Baker’s father Richard died of heart failure in 2013 aged 88, Clive knew everything — including the Baker family home in South Yorkshire — would pass to his stepmother Janice.

His father had married in later life and had explained to Clive, now 71, that whoever died first would leave their estate to the other.

Then, when the surviving partner passed away, the couple’s joint finances would be divided equally between their three children: Clive, his sister Cath and Janice’s son from an earlier relationship.

But in August 2021, Clive and his sister noticed something amiss. Cath was walking past the family home in South Yorkshire, which Richard had owned for decades, and saw a ‘for sale’ sign in the front garden.

Clive later discovered that after Richard died, Janice had changed her own will to cut out both him and his sister.

Neighbours told Clive that Janice had died two months earlier. Under the terms of her new will, everything — including Richard’s treasured family home — had been left to her only son.

Now, Clive and Cath’s estranged stepbrother was trying to cash in their late father’s property for £150,000.

Clive battled to overturn Janice’s will, arguing it contravened his late father’s wishes. But despite hiring a solicitor, he has been powerless to stop Richard’s wealth going to their stepbrother, whom he has been unable to contact.

The family, whose names have been changed for legal reasons, are just one case from a surge in bitter disputes about inheritances rippling across Britain.

A record number of inheritance rows are going through the courts, with challenges to the distribution of estates rising 37 per cent in 2021 compared with 2019, according to a freedom of information request by law firm Nockolds.

Costly loopholes in laws around wills, an increase in the number of families fractured by divorce and a growing reliance on receiving an inheritance to fund retirement or pay off mortgages are leading to more quarrels over what has been left by loved ones.

Law firm JMW Solicitors received 45 per cent more enquiries for contested probate

cases in 2022 than in the previous year.

It reported a spike in the number of people who were prepared to enter bitter disputes with family members — despite the lifelong rifts doing so can cause.

Law firm JMW Solicitors received 45 per cent more enquiries for contested probate cases in 2022 than in the previous year.

It reported a spike in the number of people who were prepared to enter bitter disputes with family members — despite the lifelong rifts doing so can cause.

Alison Parry, head of will disputes at the law firm, says partly to blame is a growing sense of ‘entitlement’ among adult children.

She says more and more people have failed to save for retirement, expecting instead that they will be able to rely on an inheritance to supplement their pensions.

The majority of UK adults expect to inherit at least one property in their lifetime, a survey by probate lender Tower Street Finance found. Three in five expect to receive an inheritance from their parents, while a quarter feel entitled to money from their grandparents.

‘People are greedier than they ever have been and feel aggrieved when the inheritance they expected never comes through,’ Ms Parry says.

The most common quarrel is over cases where parents have excluded their offspring from their wills.

People tend not to tell their children when they have been excluded from a will and then there is a shock factor alongside the grieving that makes them dispute it,’ she says.

Most wealthy families are still choosing to keep their wills a secret instead of talking through their wishes, a survey of 4,000 people by wealth manager Brown Shipley found.

Yet in many cases, the deceased did not intend to cut their child out.

Upon remarriage, all old wills are invalidated and revoked — and unless a new one is made, much of the assets will go to the new spouse, regardless of the length of the relationship.

Worryingly, half of all wills in the UK are out of date due to a life-changing event such as getting married, divorced or having a child, according to a Censuswide survey by Solicitors for the Elderly.

One growing source of disputes is over circumstances where the deceased was persuaded or coerced into changing their will, Ms Parry says. ‘These disputes don’t usually make it to trial, but there has been a significant increase in the number of claims. For example, it can happen where one child is doing all the caring for an elderly parent, then there may be an element of persuasion where they can talk them into altering a will.’

Another area where disputes are becoming increasingly common is so-called mirror wills.

This is where two partners sign identical wills, leaving everything to the other initially, with assets to be split between their named beneficiaries after the second dies. However, a legal loophole allows surviving spouses to alter or entirely rewrite a will after their partner dies.

In Clive Baker’s case, this loophole meant that his stepmother could inherit all his father’s wealth — and then leave it all to her only son.

‘We had no idea that the will had been changed,’ Clive says. ‘I feel so angry, and I know my father would be livid. We automatically assumed the mirror will still stood. No further conversations were had after my father died, because it had all been laid out.’

Following multiple failed attempts to speak to their stepbrother, Clive used the Government website to search for the probate records. He found that the will had been changed three years prior, in December 2018.

‘The new will said it revoked all earlier wills and testimony. My sister was in tears. I couldn’t believe they don’t inform the next of kin or those named in a will when such a big change is made,’ he says. ‘It’s immoral, but there’s nothing you can do legally.’

Clive and his sister Cath couldn’t even recover personal family mementos from the house before sale. Cath says: ‘It’s the small sentimental things. I’d have liked some of the old records they had because I remember mum and dad dancing to them on a Sunday morning.’

Meanwhile, Clive had been promised some of the furniture his dad, a carpenter, had crafted by hand. ‘Why would you not give us personal items at least?’

Michael Culver, of Solicitors for the Elderly and director at Culver Law, says issues with mirror wills are most common for those who are in second marriages, where each partner has children of their own.

He adds: ‘Heartbreaking situations like Clive’s arise when two people create mirror wills and do not take steps to consider what may happen if one of them dies many years before the other.’

Luke Robson, has faced a similar battle. All of his mother’s jewellery and his father’s belongings have been left to his three stepsisters after his father remarried a woman 30 years his junior, following the death of Luke’s mother.

His father had assured Luke he would inherit the family home — a £200,000 bungalow. The remaining assets would then be equally divided between him and his three stepsisters.

But when contacting his distant family after the recent death of this stepmother, he was told he was no longer an executor of the will or a beneficiary. 

‘My stepmother had cancelled the mirror will so I got none of my parents’ assets — not even the house my father bought for them to live in and none of my mother’s jewellery. It’s disgusting.’

There are no restrictions on those who alter their mirror will after the death of their partner. But there are ways to ensure your assets don’t fall into the wrong hands.

To make sure that they go to your children but your spouse is also provided for, one option is to create a ‘life interest trust’ in your will, according to chartered financial planner Sean McCann, of NFU Mutual.

This typically means that the estate is ring-fenced for the deceased’s children, but in the case of property, allows the surviving spouse to continue living in the home; on their death, the assets will pass to the children. These are commonly created by those on a second marriage with children from a previous relationship.

Another option is to create a ‘discretionary trust’ in your will. This allows you to name a number of potential beneficiaries who could benefit from the assets you leave to the trust.

Mr McCann says: ‘The trustees, who you choose during your lifetime, can pay out income or capital to any of the beneficiaries as they see fit. Importantly, none of the beneficiaries has an entitlement to the assets.’

Mr Culver says partners can also write a mutual will to make sure your wishes can’t be changed after death. These are made by two people, typically in the same terms, with the agreement that neither party will alter or revoke either will during their lifetime without the other’s consent, or after the first death. But they can be open to challenge in court, he warns.

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