Don't leave your loved ones disputing your will
PUBLISHED: 09:00 01 December 2016
With the recent tabloid headlines that Paul Daniels' son is disputing his father's will, attention is again turned to the issues that increasingly arise in family situations at the difficult time of the loss of a loved one.
The challenging question is “will the terms of your will be followed after your death?”
You don’t have to be a celebrity to be affected by the question. This month, Heather Ilott takes her fight to the Supreme Court against the charities her mother chose to benefit from her small estate on almost exactly this point. The Supreme Court will look at the extent to which Mrs Ilott’s award from the Court of Appeal should be preserved: under that award, a sizeable proportion of her mother’s small estate was diverted from the charities to her, despite her being estranged from her mother for a significant period of time. Cases such as these are always difficult, with conflicting moral and legal issues.
It is one of the hallowed hallmarks of the English legal system that we have apparent testamentary freedom, i.e. freedom to leave our assets how we want to on our death. The same is not true of much of Europe, where forced heirship regimes dictate to whom and when your assets should pass. However, as recently highlighted in the media and, as our leading specialist Contentious Trusts and Estates team have seen, challenges to wills are becoming common place. Second marriages and increasing family wealth provide potential for conflict and encouragement for claims.
It has long been the case that certain categories of people could bring claims against an estate if they were not given reasonable financial provision either in a will or under the rules of intestacy. The range of potential claimants has now been significantly expanded to include cohabitees, civil partners, all children and any person who was maintained by the deceased before their death. This extensive list makes the drafting of wills much more difficult: your will can be crystal clear about excluding particular estranged family members, preferring others, or making a carefully considered gift to a charity of your choice, but the reality is that a claim could still be made against your will after your death.
There are also other ways in which a will can be challenged. The most common that we see are on the basis of undue influence or lack of capacity.
Undue influence involves the position where a person who is expected of having an influence over a testator receives an inappropriately large part of the estate. With a population that is increasingly wealthy but ageing, there is a greater chance of the vulnerable or elderly falling victim to undue influence from family members or carers, and legal challenges can often be started on this basis.
Another way of demonstrating that a will is invalid is by proving a lack of testamentary capacity in the testator at the time that the will is written. With life expectancy increasing, the chances of developing some form of dementia also sadly increase, and so this is becoming more relevant.
These issues need careful experienced handling: testators are well advised to take expert advice and go into their will drafting meetings with open eyes. The reality is that no will is “unchallengeable”.
That said, there are steps that can be taken to reduce the likelihood of a claim against your estate. It is critical to take advice, ideally with a combination of legal, accountancy and financial planning expertise involved and, where necessary, medical opinion. The more robust and thorough the planning, the less likely a substantial or successful challenge can be mounted.
Take expert advice - A professionally drafted will is much more likely to stand up to scrutiny. Your solicitor should advise you of the potential challenges that could be made to your will and take steps to avoid them, for example, by obtaining a capacity assessment from a medical practitioner if there are concerns about capacity.
Be clear - Make sure when you write your will that you are clear about who you wish to benefit and ensure you have considered all those who may have a claim against your estate. Ensure that you articulate why certain people are to be excluded from benefitting if that is the intention.
Review regularly - Revise or review the terms of your will regularly. Life-changing events such as the birth of a child or grandchild and marriage, as well as difficult events, should prompt you to consider whether the terms of your last will are as you desire.
Lifetime giving - Consider lifetime giving or restructuring particularly if business assets are involved.
Don’t put it off - Don’t put it off hoping the next generation will sort out the problems!
Duncan Elson heads the specialist Contentious Trust and Estate team at Charles Russell Speechlys Guildford office. If you would like to speak with him about any aspect of bringing or defending a challenge to a will, or other contentious issues (actual or anticipated) relating to trusts and estates, please email him at firstname.lastname@example.org or call on 01483 252579.