Losing a loved one or family member is incredibly difficult and can become even more stressful if a dispute arises over how their estate is to be divided or over what assets properly form part of their estate. At a time when family members are grieving, disagreements as to how family wealth is to be divided can cause fall outs with sometimes lasting impact on family relations.
In estates where there is significant wealth, the prospects of disagreements arising can be even greater with individuals having greater expectations that provision should or could be made for them given the level of wealth available within the estate. Despite the principle of testamentary freedom in the UK, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain prescribed categories of close individuals to bring a claim for reasonable financial provision to be made for them from the estate . This gives rise to the possibility of claims being made by disgruntled relations and certain categories of close contacts who may have been excluded from a will or have received less than they were expecting.
Disputes may also arise whether a last will reflects a testator’s true wishes such as whether the testator (person making their Will) had what is known as “testamentary capacity” (the necessary mental capacity) to make a will or whether a Deceased had been unduly influenced in their decision making. Lifetime transactions and gifts that put funds outside of the reach of the estate can also be called into question.
Individuals are often well versed in the importance of ensuring their wishes are documented in a professionally drafted will to seek to minimise the above in so far as possible.
A will is just one part of the wider picture
However, family arrangements in relation to trusts, properties, business arrangements and lifetime gifts also require similar meticulous attention to detail during lifetime and should be properly documented to seek to minimise the risk of disputes arising after death.
Sometimes, when dealing with “family” there is a temptation to assume that things do not need to be documented and that everyone understands what is intended. However, informal or verbal only arrangements or “promises” made without clear written documentation can cause considerable uncertainty and disagreements can arise years later, when recollections differ between family members on what was said to be “agreed”, especially in circumstances where the key witness is no longer able to give evidence as to their true intentions having passed away.
Two recent cases clearly demonstrate the dangers of failing to ensure that family property and business arrangements are properly documented and of relying upon verbal promises or discussions:
Lessons from Bisiker v Bisiker and Guest v Guest
The case of Bisiker v Bisiker [2026] EWHC 2070 (Ch) , recently reported in the national press, involved a dispute between two half-sisters, Judith and Lindsay, in relation to a £2.7 million property purchased using money from their father but legally registered in the sole name of Judith. The dispute involved a disagreement over whether the property belonged solely to Judith or whether it was purchased with the intention of it being held on trust by her for herself and all members of the family, including her parents and her siblings. Lindsay argued that there was a constructive trust created by a shared understanding between the family that the property would be used as a family home. Following attempts to sell the property, the daughters were locked in a costly legal battle in the High Court to determine whether a trust in fact existed and if so, the correct beneficiaries of such trust. In that case the Court ordered that the property belonged solely to Judith and that there was no trust created with Lindsay left facing a significant costs order against her.
The case of Guest v Guest [2022] UKSC 27, involved a dispute over a working dairy farm, where one son who had worked on the farm for over 30 years for minimal wage based upon repeated assurances that he would inherit a substantial share of the farm and farming business was later removed from the Will. Andrew Guest was forced to bring a claim in court relying upon the doctrine of proprietary estoppel arguing that he had relied upon representations and assurances made to him, to his detriment, such that it would unconscionable (unfair) not to give legal effect to the same in circumstances where the Will left him nothing.
Conclusions
Without clear documentation, disputes can easily arise on lifetime gifts and whether they were intended as gifts or loans, the shares and interests parties held in properties or business assets, who is entitled to properties or business assets after death, whether a trust existed, who were intended to be beneficiaries of the trust and whether promises alleged by one party to have been made during lifetime should give rise to any legal enforceability. Disputes of this nature can be complex, with uncertain results where there is little documentary evidence and can be extremely costly to resolve. A rise in second marriages where new spouses or family members may come into a family after agreements and promises may have been made and where family members can fall out means ensuring trusts, declaration of trusts and partnership or shareholder agreements are properly drafted to reflect agreements and are kept under review is highly important to avoid costly disputes after death.