It is always a sensitive time when a loved one passes away which can become more harrowing and delicate if family members or dependents then seek to contest the will. People can experience shock and anger if the deceased wishes are unexpected which can lead to arguments and protracted legal involvement.
Sadly, we are seeing an increase in will disputes with more people nowadays contesting a Will, in part due to increasing property prices resulting in estates being worth much more than they were previously. Contentious probate is a highly specialist area, here we look at what it means and how you can take steps to avoid this happening:
What is Contentious Probate?
This is the term given to challenging the validity of a Will. The challenge could be put forward for a number of reasons:
- A claim under the Inheritance (Provision for Family and Dependants) Act 1975 with family members or dependents claiming for a share of the estate as they feel it does not make reasonable financial provision for them.
- Challenges over the validity of the Will itself; this could be in relation to the legal drafting of the Will; that the decreased was unduly influenced when writing the Will; or did not have the mental capacity to write it. It may also be challenged there is a later version of the Will or the version being used was in fact forged.
- Dispute over the administration or the distribution of the estate, the costs incurred whilst administering the estate or replacing the executors or trustees in place.
Avoiding a claim under The Inheritance Act 1975
This Act allows the court to exercise discretion and award reasonable financial provision to an eligible applicant out of a deceased’s estate. A current or former spouse (separated not divorced), children, co-habitants or financial dependants can argue there is not ‘reasonable provision’ for their support and maintenance in the Will.
This is a complex issue and hard to avoid if you have dependants that you do not want to benefit from the estate. It can be better to leave them some money in the Will but not enough to detract from your intentions. This can deter them from challenging the Will and waters down their claim to the estate. Some clients put a life policy in place for a small monthly premium and leave the proceeds to the dependants in this situation.
If you are excluding people from your Will who may expect to receive a bequest, it is important to give a detailed explanation to your solicitor who can make notes to accompany the Will as to why they will not receive any of the estate. If you are able, be open with your dependants during the process of updating or writing your Will to manage their expectations; Bill Gates and Nigella Lawson have advised their children not to expect large inheritances as they are leaving much of their estates to charity.
Challenges to the validity of the Will
To avoid challenges of the deceased being influenced whilst writing the Will, it is best to meet your solicitor alone when putting it in place. If you can, make your own way to the appointment and do not have someone wait for you whilst you draft the Will. This will prevent claims of undue influence as your solicitor will be able to defend that you acted alone.
Some Wills are contested under the claim that the deceased did not have sufficient mental capacity to write the Will at the point it was put in place. If you are over 70 or ill then it is worth visiting your GP to obtain a ‘Capacity Report’ to show you are in a fit state of mind and to confirm you mental capacity to write your Will.
Ensuring the validity of your Will
Using a ‘Will writing do-it-yourself kit’ or an unregistered and inexperienced company will leave your estate open to challenges. An expert and trusted solicitor will be to defend your position on your Will and counteract claims made. A detailed paper trail needs to be in place, with notes of how the Will was drawn up and is to be executed. A solicitor should be able to provide clear evidence as to why your Will was written in the way it was. This will assist your ‘testamentary freedom’, the established principle in England and Wales that you are able to leave your money to whom you wish.
‘The only way to get the best of an argument is to avoid it’ said Dale Carnegie and an experienced solicitor will assist you in avoiding contentious probate. If you’d like more advice on this, please call Flackwoods Solicitors on 01403 738777 or email firstname.lastname@example.org for more information.