Don’t let will challenges put you off making a will
There have been a lot of attention-grabbing headlines in the press recently covering will disputes. These articles may have left you wondering about the necessity of a will, and whether you should even write one in the first place.
It’s true to say that challenges to wills do appear to be more common but this could be due to a number of reasons. Firstly, many people are more aware of their ability to contest a will. Secondly there have been fundamental changes to the concept of the nuclear family which can throw up complications and often compelling disputes.
We’ve outlined below some of the common challenges to wills to help explain the newspaper headlines and assure you that the aim of English law around the making and settlement of wills is to protect individuals and their ability to dispose of their estate as they see fit.
Common challenges to wills:
- Is the person making the will capable of making a will? (i.e. do they have mental capacity?)
- Are they in full knowledge of the contents of their will and able to approve it?
- Formal challenges – for example, has the will been signed before witnesses? Is it a forgery?
In such cases, those challenging the will do not always get their desired outcome. Invalidating the most recent will brings into effect any previous wills that have not been revoked. If no previous will was made, then the rules of intestacy apply. Thus family members unhappy with the current will may not gain any further benefit from setting that aside and referring to a previous will.
There are other claims that may alter the provisions in a will:
- Reasonable financial provision from the Estate. This is perhaps the most successful claim made by a spouse, partner, child or other dependent of the deceased and is covered by the Inheritance (Provision for Family and Dependants) Act 1975. However, the circumstances are very particular and do not always reverse the provisions in a will.
- Proprietary estoppel. This happens where an individual relies upon an assurance to their detriment. For example, a daughter who works on her father’s land for no pay on the understanding that she will inherit.
- Undue influence. Lawyers are generally reluctant to bring this claim given the significant legal cost implications. It occurs where a party seeks to set aside a will because they believe coercion was used to make the will. Although it is not necessary to demonstrate firm coercion, the implication is that the conduct of the person influencing is tantamount to excessive pressure on the testator, thus casting aspersions on a person’s character.
Claims have been brought in some cases that stretch the scenarios of proprietary estoppel and undue influence. The Law Commission is proposing to address the disincentive to bringing undue influence claims. As a starting point, when the person making the will is dependent upon someone else (e.g. a carer) and their will makes a provision for that person, and an allegation of undue influence is made, it will be up to the person benefitting from the will to prove that it was made free from undue influence.
How we can help
If you are dealing with an Estate where some of the above disputes may arise, or if you’re unsure of how a will may affect you please speak with one of our Contentious Probate team.
If you are concerned about whether your will has been prepared to take into account potential claims or if you have not yet made a will, please contact our Tax, Trusts and Estates’ team. It‘s important to make a will, otherwise you have no say as to how your estate will be dealt with. Our team of experts help our clients make wills and have significant experience of advising on potential challenges. Please contact us on 01273 324 041 or alternative email us on email@example.com