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46In Association With...APRIL 2013trustprobateContinuing with our special focus on trusts and probate, Lawyer Monthly speaks to GavinFaber, a Partner in the Dispute Resolution Team at Higgs & Sons, an award-winning lawfirm in the West Midlands. Gavin specialises in contentious probate and trust litigation.How do you feel this practice area hasdeveloped over the course of the lastyear?I consider that the area is growing far quickerthan many people appreciate. The vastmajority of disputes on which I advise settlelong before proceedings are even issued.This can be attributed to numerous factors,including an aging population, an increasein the number of people suffering fromage-related illnesses, people leaving it untillater in life to make or update wills, peoplebecoming increasingly dependent uponcarers who can abuse their position oftrust, the increase in the value of estates,complicated family structures and peoplesimply becoming more litigiously minded.Testators themselves are also becomingmore aware of the possibility of challengeand there seems to be an increase in the useof forfeiture clauses.The enormous amount of informationavailable on the internet has given rise to asubstantial increase in people's awareness ofthe possibility of challenging wills and trusts.They no longer rely on professional advisers.This in turn has lead to a greater numberof litigants in person which is problematicgenerally in civil courts but perhaps more soin this type of case where a number of veryspecific rules apply to this specialist area ofwork. However, the Courts have also madeit absolutely clear that where proceedingsare issued without merit, it carries significantrisk of a substantial adverse costs order. Thecommon misconception that costs alwayscomes out of the estate or trust should bedissipating (see Wharton -v- Bancroft [2012]EWHC 91 (Ch)).I consider the case of most practicalimportance is that of Marley -v- Rawlings[2012] EWCA Civ 61, which is currently thesubject of an appeal to the Supreme Court.The Court of Appeal would not rectify ahusband's will where he had mistakenlysigned a will meant for his wife (and viceversa). Private client lawyers must be alert tohusband and wife clients inadvertentlyswapping around and executing eachother's wills. As things stand rectification is notavailable in this situation and if a fresh willis not executed the will draughtsman willhave been negligent and liable to thebeneficiaries under those would be wills.What are the most common challenges tothe validity of wills?The majority of disputes upon which I advisearise from either lack of due execution orlack of testamentary capacity. It isunsurprising given the changingdemographic of the population, that thedeceased's poor health is often the startingpoint for a challenge. Having said this, clientsoften allege undue influence. However, theCourts have made it abundantly clear thatnotwithstanding what may appear to besuspicious circumstances, they will notreadily interfere with the testamentaryintentions of the deceased on this groundwithout clear evidence of coercion beingapplied (see Hubbard -v- Scott [2011] EWHC2750 (Ch)).How can people avoid challenges?The fact of the matter is that there is no waythat someone can prevent a challenge tothe validity of a will. That is not to say that therisk cannot be reduced significantly. The willdraughtsman’s expertise and experienceare important factors and taking properadvice is essential. Whilst there is a desireto save cost, few people will be able toproperly draft their own will and the scopefor mistakes, and potential abuse, isenormous. It is imperative that the willdraughtsman follows the ‘golden rule’ andtakes account of the principles set out in thewww.lawyer-monthly.com