A Will sets out everything you want to happen after you die – a very important document that everyone should have. Just as important though is foreseeing and avoiding any potential arguments and disputes.
How do you challenge a Will?
The four main ways for somebody to challenge your Will are if:
- You did not have mental capacity when you made it.
- You were unduly influenced by someone when you made it.
- The Will was not signed or witnessed correctly or you did not know or approve its contents.
- You did not provide for someone who can make a claim under the Inheritance Act.
How to avoid a challenge on your capacity to make a Will
Under the Mental Capacity Act it is assumed you have capacity, but for a Will you need to show you understand three things:
- The nature of making its Will and the consequences i.e. what they are leaving to people
- The extent of their property
- The individuals who they are morally bound to provide for and the consequences if they do not provide for these individuals.
And show that your Will is not affected by any false beliefs.
If there might be a question over whether you have capacity at the time of making a Will, your solicitor should follow what is known as the ‘Golden Rule’. This says that if there is any doubt at all about your capacity, then obtain medical evidence. So do not be insulted if your solicitor suggests this. They are following good practice to protect your wishes. They should also have met you, and their notes are also powerful evidence.
How to avoid a claim against your Will for undue influence?
To set aside your Will for undue influence, someone has to prove that you were coerced into making it.
There are a number of practical things you can do to show that you were not.
First and foremost, it is advisable to instruct a solicitor to draft your Will. You should meet the solicitor face to face. You should go alone to any appointments or at least see the solicitor alone. You should ask for a draft to consider. Only after consideration should you return to sign. Instructing a Solicitor will mean that you have an objective and impartial person who will ensure that the wishes in your Will are yours and nobody else’s. They can confirm this afterwards, should somebody suggest you were influenced into making certain decisions in your Will.
If you do decide to make or not make certain gifts in your Will that may confuse or upset someone, you may want to explain your reasons for doing this. You can put your reasons in a letter to be stored with your Will.
How to avoid a claim against the validity of the Will because it was not executed correctly?
This type of claim is an all too common occurrence, particularly with home-made Wills. Under the Law there are certain processes that have to be followed when making a Will and the best way to avoid any claim against a Will not being executed correctly is to instruct a Solicitor to draft the Will for you and meet face to face to sign it.
How to avoid challenges under the Inheritance Act?
A number of people can make a claim against a Will:
- Your spouse or civil partner; or former spouse or civil partner (provided they have not remarried or registered a new civil partnership)
- Any person with whom you cohabited continuously with for at least two years before your death
- Your children – anybody you treated as a child of your family unit
- Any other person you were supporting financially when you die.
Spouses etc can claim reasonable financial provision, the others are limited to reasonable financial provision by way of maintenance.
The Courts, under the Inheritance Act, can amend your Will. You can take certain practical steps to prevent a challenge. Always provide for spouses, dependent children (living with you or not) cohabitees and other dependants. Your solicitor can advise what is reasonable.
Claims by Adult Children are particularly topical. You may have seen in the news recently, a daughter successfully challenged her mother’s Will after she wasn’t left anything. Her mother’s will gave everything to a number of animal charities. The Court decided that the daughter was entitled to some of her mother’s estate (enough to pay off her mortgage) despite the daughter being estranged from her mother for many years. The reasoning behind this was that the daughter was very poor, the mother was being unreasonable by not leaving her daughter anything and the beneficiaries were charities with which she had no particular connection.
It is therefore always important when deciding to whom you are going to leave things in your Will to make sure there is a reason for your choices. Again a well drafted letter left with your Will can help.
For help, advice or a no-obligation discussion about a will dispute or contentious probate issue, please contact Mike Spencer on 0115 9100 200 or email [email protected].
Posted on October 29, 2015