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Why Family Disputes Are Rising In English Courts

Joel Seager and Robaidh Allighan

1 March 2022

More families are arguing about inheritance, and this important area of wealth transfer is becoming a legal battleground. What’s causing the increase, and what can advisors and clients do to hopefully reduce the need for costly disputes? To examine the issues are Joel Seager and Robaidh Allighan of , the London-based law firm. 

The editors of this news service are pleased to share these views and invite responses. The usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com

Why are increasing numbers of people being drawn into disputing the family inheritance? Figures from the Ministry of Justice show that in 2020, 192 claims were brought in the High Court in London by parties who sought a share or larger portion of an inheritance; an increase from 188 in 2019 and 128 in 2018 (Figure 1). (1) Contributing to this rise is the growth in unmarried cohabiting couples and the development of increasingly complex family structures. As rising house prices drive estate values upwards, for those surviving family members who stand to benefit, there is ultimately more at stake. In the private wealth market, many families are experiencing a generational shift following the death of the matriarch or patriarch who built the family fortune. 

Disputes amongst high net worth families are potentially all the more complex as the focus is on assets spread across multinational businesses and in offshore structures. With the UK continuing to be a place for the super-rich to base themselves, the rise in high-profile family wealth disputes seems set to continue into this year.

Figure 1: Number of inheritance claims issued in London  (2)

Demise of the nuclear family structure brings added complexity to estates
The number of cohabiting unmarried couples has grown significantly over the past two decades. In 2000, the ONS estimated the figure to be 1,984,000 households; by 2020, this estimate had risen to 3,380,000. (3)  At the same time, family structures have become more diffused and extended families commonly comprise spouses in second or third marriages, and stepchildren from previous relationships. (4) Unmarried couples lack automatic inheritance rights so the death of a partner with no will could lead to sudden financial uncertainty for immediate family members.

The likelihood of increasingly complex family arrangements means more people could end up feeling ‘left out’ or inadequately provided for in situations where there is or is not a will. If a spouse, former spouse, child or dependent thinks that the estate has failed to provide enough for them, they can apply to the court for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependents) Act 1975. (5) There is an increasing awareness of the potential for heirs to exercise their rights in this way as a result of media coverage on cases such as Ilott v Mitson, where an estranged adult child sought financial provision from her deceased mother’s estate. (6)

Property boom leads to higher value estates
In 2021 testators were leaving behind larger estates than ever, driven by the historic boom in the UK property market. For family members, there is potentially a great deal at stake when it comes to contesting the distribution of an estate. A testator passing away today may have purchased a house in the 1960s or 1970s; even since 1995, the average price of a detached house in England has increased by approximately 400 per cent. (7) Given that the bulk of most estates will comprise property, testators who invested in this area are likely to be able to leave behind a very substantial inheritance. This is borne out by the figures: HMRC has recorded a steady increase in estates valued at more than £1 million over the past decade (Figure 2). Considering the challenges faced by younger generations in purchasing a first home, the chance to benefit from a property-heavy estate could be particularly important and worthy of disputing.
 
Figure 2: Number of high value estates notified to HMRC (8)

When family also means business…
In recent years, the private wealth market has seen a number of high-profile family wealth disputes. (9) The death of a key matriarch or patriarch responsible for building the family fortune leads to a generational shift, as younger members of the family stand to assume control of businesses and inherit considerable wealth. The Barclay dispute recently gained attention in the financial press. The Barclay brothers, Sir David and Sir Frederick, built a vast business empire spanning retail, the delivery company Yodel, The Daily Telegraph and The Ritz Hotel. (10) The feud came to light in 2020 when it emerged that the relatives of Sir David had bugged Sir Frederick’s suite at The Ritz in order to gain information on the planned sale of the hotel. The sale was portrayed as a proxy battle for control of the complex group assets, which centre on a family trust. Sir Frederick and his daughter Amanda feared being sidelined by Sir David’s four heirs. (11) The press reported that the feud had spilled over into management of the Barclay businesses, with interested buyers being given conflicting messages by different elements of the family. (12) The family recently reached a private settlement.

The Barclay feud highlights the potential difficulties in carving up a complex asset structure between competing beneficiaries and organising a smooth ‘transfer of power’ to younger generations. Families from overseas relocating to the UK should be mindful of these challenges – the jurisdiction continues to be a popular place for the super-rich to establish a base and dissipate their wealth. The buoyant UK property market is an excellent target for investment and there is a growing awareness of the opportunities in this market outside London. The English courts can provide legitimacy, and a degree of certainty, for parties seeking to resolve disputes with an international element. 

Will the UK continue as a safe haven for asset protection?
There were indications that the UK could be becoming less attractive for individuals seeking asset protection. The introduction of Unexplained Wealth Orders (UWO) appeared to indicate an increased appetite on the part of the NCA to combat money laundering and the proceeds of organised crime. However, this seems to have been a flash in the pan with little notable effect. Since its introduction, only four UWOs have been obtained. (13)

Alternatively, individuals holding assets in trust structures should be aware of the increasing willingness by the courts to break open trusts where there is a suspicion that the trust is a sham or intended to hide assets from creditors. Promyshlenniy Bank v Pugachev and recent Privy Council cases, Webb v Webb and TMSF v Merrill Lynch Bank, indicate that the courts are becoming less likely to uphold trusts if a settlor still maintains beneficial ownership of trust property, and there is an intention to put assets out of reach. (14)

With little in the way of notable obstacles, high net worth individuals will continue to settle and stay in the jurisdiction. As the generational shift continues, and control of family assets transfers to the younger generations, 2022 will see further disputes arising where individuals feel unprovided for. Testators with a large or complex family structure should invest time in detailed estate planning and be prepared to engage in challenging conversations with family members to mitigate potential issues. Disputes in this area must be carefully managed to deal with the issues in a discreet manner, minimise the impact on family businesses and preserve relationships in so far as is possible.

Footnotes:

1  National Statistics, ‘Civil justice statistics quarterly: January to March 2021. Royal Courts of Justice Annual Tables – 2020’ (gov.uk, 3 June 2021) https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2021 accessed 18 October 2021.
2  ibid
3  Office for National Statistics, ‘Families and households’ (ONS, 2 March 2021) accessed 5 October 2021.
4  Lucy Warwick-Ching, ‘Inheritance planning and blended families: a tricky mix’ (Financial Times, 1 September 2020).
5  Inheritance (Provision for Family and Dependents) Act 1975.
6  Ilott v Mitson EWHC 1000 (Ch).
7 The average price of a detached house in January 1995 was c.£85,000. By July 2021 this had increased to c.£434,000. UK House Price Index, ‘House Price Statistics’ (Land Registry) accessed 4 October 2021.
8  HM Revenue & Customs, ‘Inheritance Tax statistics: Table 12.3 - estates notified to HMRC, numbers and tax due’ (UK Government National Statistics, 29 July 2021) accessed 6 October 2021.
9  Gorbunova v Berezovsky’s Estate EWHC 1829 (Ch); Goodwin v Avison EWHC 2356 (Ch); Miles v Shearer EWHC 1000 (Ch); Ben Ellery, ‘Children of Terry Jones, the late Monty Python star, enter legal snakepit over his will’ (The Times, 2 October 2021).
10 Patricia Nilsson and Alex Barker, ‘Relatives in Barclay family feud offer damages over Ritz bugging’ (Financial Times, 8 June 2020).
11  David Dawkins, ‘British Billionaire Family Feud Nears An Amicable End As Sir Frederick Barclay Settles Ritz Hotel Bugging Scandal’ (Forbes, 4 June 2021).
12  Alex Barker, Jemima Kelly and Mark Di Stefano, ‘Barclay family feud takes a grave turn’ (Financial Times, 28 February 2020).
13  Ali Shalchi, ‘Unexplained Wealth Orders’ (House of Commons Library, 1 October 2021) accessed 5 December 2021.
14  Georgina Squire, ‘Litigation – 2017 in review’ (Law Society Gazette, 27 November 2017); JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev EWHC 2426 (Ch); Tasarruf Mevduati Sigorta Fonu (TMSF) v Merrill Lynch Bank and Trust Company UKPC 17; Webb (Appellant) v Webb (Respondent) (Cook Islands) UKPC 22.