Ensure your will stands up in court

With contested wills and estates on the rise; how can you ensure your Will can stand up in court?

It would be nice to think that once you have made the effort to draw up and sign your will, your estate will definitely pass, on your death to the beneficiaries you have chosen. Unfortunately, this is not always the case. There are two different ways in which your will and estate can be contested following your death and the number of such claims going to Court is showing an upward trend;

A) Your will could be thrown out if the strict formalities of making a will were not fully complied with.

B) A family member or someone financially dependent on you can make a claim on your estate (whether you have made a will or not) on the basis that not enough provision has been made for them and they will suffer hardship as a result.

A. Is the Will Formally Valid?

The format and execution of a Will must be correct for your will to be valid. For example, the will must be signed before two witnesses, in accordance with the Wills Act 1837.  Anyone seeking to disputea will after the testator (the person whose will it is) has died, will firstly check that the will is set out and signed correctly.

It is also a formality that the testator must understand what they are doing when they make their will. Therefore, someone wanting to get a will thrown out will check for any evidence that the testator either didn’t understand what they signed (perhaps they had lost mental capacity, had been subject to a fraud or simply a misunderstanding) or were under the undue influence of another person when they made the will.

How can I ensure my Will is valid?

By making a will with a solicitor you will be placing yourself under their expertise to ensure that all of the formal requirements are achieved. Usually the solicitor will offer to witness the signing of the will as well as drafting the will for you and advising you on the contents. Even if they don’t witness the signing, your solicitor will check the will after it has been signed, to ensure it has all been completed correctly.

The solicitor will also form their own opinion as to your capacity to make the will and they will try to ensure that you understand the will you are making. They will speak to you individually if they suspect that you are under the influence of another person or consult a doctor if they think you are not of sound mind. They will not make the will at all if they form a belief that you do not understand what you are doing.

Solicitors’ will files are not destroyed after a set number of years, unlike other solicitor client files. This is in case they need to be used in evidence in a claim on your estate or a claim that your will is invalid. The evidence of a solicitor and their file is strong as the solicitor would usually be independent from the deceased and the deceased’s family and will have experience of dealing with people making will.

B. Inheritance Act claims

Any member of the family can make a claim under the Inheritance (Provision for family and Dependants) Act 1975 (known as an “Inheritance Act” claim). This claim can be made whether there is a valid will or not. The basis of the claim is that the family member has not been left a fair share of the estate and they will be asking the court to allocate them a greater share of the estate. The Court are at liberty to re-allocate the estate as they choose and this is therefore very appealing to family members, especially when the costs of such a claim for both sides are usually met from the estate. However, the Courts will not deviate from the wording in a person’s will without a very good cause. Therefore, if you are not a close family member such as a spouse or child then you would only have any chance of success if you were financially dependent on the deceased. Even children of the deceased are unlikely to be awarded anything is they are over the age of 18 and capable of earning their own living.

When would an Inheritance Act Claim succeed?

It perhaps disappointing that the Courts can potentially decide to ignore what you have carefully written in your valid will and make an Order to allocate your state in a different way . The Courts will not override a person’s will without good reason but sometimes when the circumstances before them show an injustice and a financial hardship they will act to put it right while also considering the effect it will have on the other beneficiaries. The Courts will look at all the circumstances when making their decision, such as:

1. The size of the estate
2. The financial and general circumstances of the beneficiaries currently entitled to the estate
3. The financial and general circumstances of the person claiming a bigger share of the estate (the claimant)
4. The relationship between the deceased and the claimant
5. The relationship between the deceased and the beneficiaries
6. The deceased’s reasons for not leaving the claimant more of their estate (was it vindictive? Was the family quarrel one-sided? Who had tried to make amends if anyone?)

How Can I Prevent An Inheritance Act Claim succeeding on my estate?

1. Use a Solicitor to write your will

It is a good idea to make your will with a solicitor, not only for the reasons given in A above regarding ensuring that the will is formally valid but also because the solicitors will note down in their file the discussions they had with you about your will and why you are missing out that family member, or leaving them a smaller share. The solicitor’s attendance note will confirm information about the thought process you followed when making your will, which the Courts will weigh up in evidence. In order to assist the Courts in upholding your will and rejecting the claimant’s claim for more assets, the Court will want to see evidence that you had carefully considered your decision in full knowledge of the potential size of your estate, and the expectation that certain family members might have of an inheritance from you and as well as the reasons you had for excluding that family member from your will. This evidence can all be contained in the solicitor’s will file.

2. Write down your reasons in a separate letter to keep with your will

If you are choosing to miss out in your will a close family member such as your spouse or child, it is important that you make your reasons clear in your own words, as this will be strong evidence to defend a claim against your estate. It is not usually appropriate to set out your reasons in the will itself as the will as the will becomes public document as soon as a Grant of Probate has been issued. It is therefore advisable to write your reasons down in a separate letter and to keep it with your will so that it can be used in the event that someone does make a claim on your estate. Any such letter should be signed and dated by yourself to make it stand up more strongly as evidence.  You would be able to update this letter during your lifetime if you needed to.

3. Leave them a gift in your will even if not much

You may also want to consider leaving that family member a legacy in your will after all, in order to give them less grounds for making a claim. In the well-known and recent case of Ilott v The Blue Cross and others, a daughter, who had willingly cut her ties with her mother 26 years earlier to marry her boyfriend at the age of 17, was left nothing while the entire estate was left to various charities. As an independent adult child of the deceased, the Supreme Court did not feel it fair to give the daughter a large part of the estate and in previous case law, in fact, adult independent children have not been successful in claiming against their parents’ estates at all. However, in this case, the daughter was not working, her husband was on a low wage and 4 of her 5 children were still living at home and also not working or on a low wage, so that they needed a great deal of financial support from the State and had done for years. There was some evidence of vindictiveness on the part of the deceased mother and she had no particular tie to any of the charities in her will, so the Supreme Court decided it would be fair to award her daughter 10% of the estate (£50,000) while retaining the other 90% for the charities. The Supreme Court, in fact, overturned a decision of the Court of Appeal to award the daughter a much larger share of the estate.

This case took 12 years and thousands of pounds worth of legal fees to go through the Courts to reach the Supreme Court. If the testator had left her daughter a gift under in her will, even if it was for less than £50,000, the daughter may have decided not to sue the estate or if she still had, she may not have been successful.

You should therefore consider, if you are minded to “cut out” a close family member from your will, leaving them a legacy (of a value you are comfortable with) in the will. This may help to prevent a claim against your estate by reducing their dissatisfaction and/or by reducing their chances of making a successful claim and save your estate from paying large amount of legal fees.