The old saying goes that there are only two guarantees in life: death and taxes. Therefore, with this in mind, it makes sense why so many of us want to ensure that after we die, our hard-earned assets are passed to the people who mean the most to us.
Wills are one of the most fundamental documents that every person should have, and even more so if your wishes for distribution do not follow what might be considered “standard”.
Our Private Client team have written articles in the past on drafting valid Wills and why they are so important (https://www.barrettandco.co.uk/2019/07/04/do-i-need-a-will), but it is important to remember that even with a solicitor drafted Will which makes your wishes clear, legislation and case law can mean that after your death, your Will may still be challenged by people who believe that they have not been adequately provided for, or in fact, not provided for at all.
Stopping Grievances after Death
The Executors are the people who handle your affairs and assets after your death, including paying any tax that is due and completing final distributions. If you believe that a family member or friend may feel aggrieved by your distribution decisions, you should discuss with you solicitor the best choice of executors for the circumstances. Often nominating a third party as professional people, such as solicitors, can dissuade a disgruntled beneficiary from making a claim. This may prevent family fall-outs and ensures that the Estate is administered in a way which is clear and transparent.
Who Could Claim?
Under your Will you list a specific set of people who you wish to receive gifts upon your death. These gifts can be specific items, sums of money or in fact what is called the ‘residue’ i.e. everything else.
Unlike in some European countries such as France, there is no automatic right for a spouse or a child to receive a portion of your Estate under your Will. Should you wish to do so, you can leave your entire Estate to charity and not to any relatives no matter what their relationship is to you.
However, certain categories of people (such as a surviving spouse or minor children) are entitled to make a claim against your Estate if they wish to do so or if they feel they have not received sufficient funds.
People who have been maintained by the deceased or promised something by the deceased, and who have acted to their detriment upon that promise, also have legal standing to make a claim.
A solicitor can advise you on the likelihood of this.
Challenges to a Will include:
- Accusations of invalidity through lack of capacity
One of the ‘golden rules’ in Will writing is ensuring that the person whose Will is being drafted has the requisite capacity to create a Will. The capacity requirement for drafting a Will is of a higher standard than other forms of capacity for other activities such as consenting to medical assistance.
With our ageing population, and also a projected increase of up to 156%, of persons living with Dementia by 2057, the risk of fluctuating capacity is on the rise, especially if the Testator is elderly at the time of creating their Will.
A beneficiary or an excluded person may wish to present, upon death, medical evidence or statements to suggest that the Testator could not have had the requisite capacity to write the Will in question.
A professional Will drafter should be able to provide evidence, ideally in written notes and letters, that capacity checks were conducted, especially if the person was elderly or unwell.
- Accusations of invalidity through undue influence
Again, with the ageing population in the UK, many people now need additional assistance from friends or family to either continue to live independently at home or to handle the digital changes in financial affairs – gone are the days of popping into branch to meet your regular bank manager and handling transactions in cash!
With this in mind, some friends or family members might be well aware of the wealth of an older person, and unfortunately, may try to exploit this during their lifetime by influencing the person to write a Will and benefit that friend of family member.
Again, by having your Will drafted by professional Will writer should limit the risk of a third party influencing the Testator.
Consideration should always be given however to the fact that if the “last Will” is deemed invalid, then the previous Will or the intestacy rules may come into play.
If this is likely to be the case, an aggrieved person may instead wish to accept the last Will as valid but make a separate claim for provision against it, if appropriate.
Next month we will examine the options available under the Inheritance (Provision for Family and Dependants) Act 1975.
Should you in the meantime believe that the Will of a friend or family member was drafted when they did not have capacity, or somebody else may have influenced their decision, please contact the Contentious Probate Department on 0118 958 9711.
The Contentious Probate Team can review your concerns initially on a fixed fee basis of £95.00 inclusive of VAT for 1 hour.
Equally should you require advice on ensuring that your current Will is valid, want to change your Will to include or disinherit any persons, or are unsure how your Estate would currently be administered, please contact the Private Client Department on 0118 958 9711.