Charlotte Dawes Senior Associate
Steps to minimise your estate being the subject of a dispute
Covid-19 has forced us all to consider scenarios that were previously unthinkable. As we are having to spend an extended period of time social distancing, in accordance with Government guidance, we have the time to start considering the matters which we often avoid talking about and dealing with, particularly lifetime and estate planning.
It is arguably more important than ever to have to consider your affairs and ensure that your wishes are up to date and formalised in a Will, which will dictate the way in which your estate will be dealt with after your passing. My colleague, Hannah Thomas has prepared a helpful guide as to how you can ensure your Will is up to date here.
Ensuring your Will is up to date is imperative to seek to avoid any uncertainty or dispute as to your intention and wishes after your passing.
It is widely reported that in recent years that the number of people contesting an Estate has increased, attracting media attention and public interest. An increase in complex family arrangements has made it increasingly common for there to be a dispute.
There are five main grounds upon which a Will can be contested:
1. Testamentary Capacity - did the testator (person who has prepared the Will) have the mental capacity at the time of preparing and executing their Will, can it be established that they knew what they were doing. They must be of sound mind for a Will to be valid.
2. Lack of Valid Execution – if the formalities set out in Section 9 of the Wills Act 1837 have not been complied with as follows;
- A Will must be in writing and signed by the Testator (or someone else who has their authority to do so in their presence) and that their signature is intended to give full effect to the Will.
- There must be two independent witnesses present together must have witnessed the testator’s signature and attest and witness the Will.
3. Lack of knowledge and approval – the Testator must have knowledge of, and approve the contents of their Will. In simple terms, they must know that they are signing a Will and approve its contents;
4. Undue influence or coercion – The Court has accepted that when people are making a Will, they will be influenced by many factors when deciding who to include. However, if this influence amounts to coercion, then it will likely be deemed undue influence. A Will must reflect the Testator’s wishes.
5. Forgery and fraud.
Claims under the Inheritance (Provision for Family and Dependents) Act 1975
It is also important to be aware of potential claims under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”).
Where a Will makes no, or only limited financial provision to a spouse, civil partner, former spouse, former civil partner, children and those treated as children by the deceased or any other persons maintained by the deceased, the 1975 Act, allows that person to make a claim against the deceased’s estate for reasonable financial provision. If your Will does not provide reasonable provision for those individuals falling into the scope of the 1975 Act, it is imperative that your decision making behind the terms of your Will is properly explained within a Letter of Wishes annexe to your Will.
How can I protect my Will from a Dispute
Whilst there is no definitive measure to ensure that the contents of your Will is not subject to conflict, there are a number of ways you can seek to protect your wishes and minimise the chances of your intentions being the subject of dispute.
1. Ensure your Will is kept up to date
- Have things changed in your family set up which changes how you wish your Estate to be distributed? For example, a new grandchild who isn’t covered within the terms of your current Will.
2. Provide an explanation for your decision making
- You are able to leave a document known as a Letter of Wishes to be read in conjunction with your Will to explain how and why you have decided to prepare a Will on the terms provided. Whilst your Letter of Wishes is not legally binding, it provides further clarification as to your reasoning after your passing if a dispute were to arise.
3. Instruct a Probate Specialist to prepare your Will
- Solicitors are best placed to provide you with the options available to you to best protect your assets after your days.
Ince can help you deal with Inheritance disputes. Should you require advice as to minimising the chances of your intentions being subject to dispute, or with assistance in whether you have a claim please contact us on 029 2010 0950 or via email to email@example.com