It is widely reported that the number of disputed Will cases has been steadily rising over recent years and is predicted to continue to do so over the coming years.
Whilst the starting point in any Will dispute is that the maker of a Will has the freedom to choose what happens to their estate, the reality is that many arguments over Wills happen, and different agreements can be made in relation to a person’s estate compared to that which is set out in a Will. Although there are no steps a person can take to prevent arguments over their Will, there are certain steps and considerations that can help to reduce the possibility of a fallout.
Executors are the people chosen to gather the assets of the estate, pay any debts and liabilities, and distribute your estate in accordance with the terms of your Will.
Careful thought should be given as to who you appoint to act as your executors. We often see cases where parents appoint adult children to undertake the role, based on an assumption that this will be a cheaper option than appointing a professional to act as an executor and that the children will work in harmony together. Sadly, many of the executor disputes we see are between siblings who have been appointed as executors in their parents’ estates. Despite prior years of a good relationship, this can be undone during the administration of an estate often resulting in a power struggle between siblings.
This can often turn into a more costly exercise than appointing a professional executor from the outset.
If a child has become estranged and there has been no contact for several years or decades, the temptation often is to leave that child out of a Will entirely.
A child (including an adult child) is a person entitled to make an application for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Opting to leave a nominal or modest sum to an estranged child may be a better way to avoid a potential claim under the 1975 Act.
Particularly in the case of farming families, or other family-run businesses, we often see situations where a promise has been made to a child that they will receive the farm or business and it subsequently transpires that this is not what is said in the Will. Your estate can be held accountable for promises and assurances made during your lifetime.
If you think that you may have made an explicit or implied promise or assurance to someone in relation to an asset in your estate, this ought to be addressed and dealt with prior to your passing.
A no-contest clause is a term in a Will that states that a beneficiary will lose anything they were to inherit if they attempt to challenge the Will. Whilst there is no guarantee such clauses will be upheld, it may be enough to dissuade someone from pursuing a claim against an estate.
People often see Wills as a “one-off” document which once it has been written, they do not need to think about again. However, Wills should be regularly reviewed, particularly upon significant life events, such as the death of a close family member, a breakdown in a relationship, a marriage, or any change in circumstances.
Ensuring that a Will is regularly reviewed and, if necessary, amended or revoked, will make sure that your last wishes are kept up to date.
If there is any concern that someone may attempt to argue that you did not have mental capacity when preparing your Will, it is a good idea to obtain a letter from your GP confirming that you have sufficient mental capacity to prepare your Will.
Finally, people often do not like to talk about their Wills and plans for their estate. This lack of clarity can often result in arguments arising when you have passed away. If possible, arrange an appropriate time to discuss plans with your family and be prepared to answer questions.
Unfortunately, there are no steps that any solicitor or Will writer can take which will prevent an argument over a Will. However, following the above steps may reduce the possibility of a successful claim. Will disputes are costly and can ultimately cost a significant amount both in terms of financial cost and family relationships. Get in touch with our contentious probate team today for further advice.