Demand for wills and probate work has been on the rise in recent years, a trend exacerbated by the COVID-19 pandemic. For law firms, this has offered a healthy supply of business, but also poses challenges, as several factors drive an increase in disputes. To protect against successful claims, firms must have in place a robust risk management strategy.

Increased appetite for wills and probate

Wills and probate is an area of increasing activity for law firms. According to a recent IRN Legal Report, the number of law firms offering advice in the areas of contentious wills, trust and probate has doubled since 2018. The market passed the £2 billion mark in 2021 and is expected to reach £2.4 billion by 2025.

In directing a greater portion of resources towards wills and probate, law firms are responding to growing consumer demand. Back in March 2020, the onset of the COVID-19 pandemic encouraged a significant volume of people to plan ahead, in anticipation of what turned out to be a substantial number of excess deaths across the UK.

This was reflected in will drafting – according to the deVere Group, law firms and will writing organisations experienced a 76% spike in demand in the fortnight leading up to 1 April 2020. Similar spikes were also observed at other crucial moments throughout the pandemic, including the announcement of further lockdowns and, most notably, the hospitalisation of then-Prime Minister Boris Johnson.

Volume isn’t the only change to have taken place within the sector, either; the process by which such wills were written was also impacted by the pandemic. The same IRN survey found that 52% of wills were written by a solicitor in 2021, down from 56% in 2020. Meanwhile, the proportion of those drafting their own rose to 12%, as successive lockdowns limited access to in-person legal advice.

More wills, more disputes

Despite the attraction of wills and probate among law firms, such work is not without consequence. As will drafting has increased, so has the risk of potential disputes.

A higher number of wills is one reason, but isn’t the only factor. Once again, COVID-19 is a driver, with more people having rushed to write a will during the pandemic. This in turn is likely to see a rise in the number of disputes relating to the quality and effectiveness of wills.

Likewise, remote drafting and execution are not without their challenges. Delays in taking executions, signatory challenges, and the threat of undue influence are all greater within a remote setting, and may result in a number of claims relating to wills drawn up during the pandemic.

Now into 2023, the threat of COVID-19 has receded. However, other factors continue to encourage a growing number of will disputes.

According to IBB Law’s UK Inheritance Disputes Report for 2022, disputes between siblings remain the most common form of dispute – perhaps driven by an economic climate in which adult children are relying more on an expected inheritance to prop up investments. Rising property values, blended families, and cohabiting couples in a more litigious society are also having an effect.

Furthermore, high UK life expectancy is resulting in a larger number of wills being drafted closer to the end of someone’s life. Taken in combination with rising dementia rates, firms should expect more wills to be disputed on grounds of testamentary capacity.

Protecting against risk

As disputes become more frequent, firms undertaking wills and probate work should be on-guard against potential increases in the number of claims made against them. Such claims are likely to be of a long-tail nature, with the risk of dispute extending for years after the granting of probate or execution of a will.

Larke vs Nugus requests – a request for information about the preparation of a will – also threaten law firms with legal costs, or charges of non-compliance where the request is not adequately fulfilled.

With this area expected to continue to generate claims, it’s important that firms conduct rigorous risk management with regards to wills and probate work. This may include:

  • Recording and maintaining details of a clear understanding of a client’s family relationships
  • Maintaining a record of advice concerning provisions relating to second marriages agreed by the client
  • Ensure complex will provisions are reviewed by a second fee earner
  • Ensure proper procedures are in place to prevent the disclosure of information relating to a will, or the instructions regarding that will, without consent from a client’s appointed personal representatives or other authority
  • Where responding to Larke vs Nugus requests, determine whether you have the authority to disclose information that is otherwise confidential and privileged
  • Where disputes occur as to who constitutes a personal representative, seek consent of all rival claimants prior to the disclosure of information
  • Ensure a lawful basis for the processing of any personal data
  • Take extra measures to prevent challenge to wills; for instance, arranging mental capacity assessments where appropriate
  • Where there is a threat of a claim for negligence or other breach of duty relating to the preparation of a will, immediately inform your insurer
  • Conduct continual reviews of applicable precedents used within wills and probate activities

For further information, please contact:

Frances Lodge, Assistant Vice President

T: +44 (0)20 7933 2905

E: frances.lodge@lockton.com