News Article

29Apr

Will the wishes in my Will always be carried out?

In most cases, yes, if your Will has been properly signed and witnessed, you had mental capacity when you made and signed the Will, and

you were not subject to any undue influence. 

You have the right to leave your estate to anybody you like. Still, in some circumstances, a claim can be made on your estate after your death – usually by a relative who was expecting an inheritance or who feels that they were unjustifiably excluded from the Will.

The Inheritance (Provision for Family and Dependents) Act 1975 (‘the Act’)

This Act enables the following categories of persons to make a claim: 

  • the spouse or civil partner of the deceased;
  • a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
  • a child of the deceased;
  • any person (not being a child of the deceased) who was treated by the deceased as a child of the family;
  • any person who immediately before the death of the deceased was being maintained by the deceased;
  • For two years before the deceased’s death, a person lived in the same household, and it was as if that person and the deceased were a married couple or civil partners.

Therefore, there is quite a large pool of people who could potentially claim the estate, but there are ways to minimise the risk.

How can a claim on the estate be avoided?

If your family members become estranged and you do not want them to inherit, simply changing your Will to disinherit them may not be enough to prevent a Court from determining that they should inherit a share of your estate.

 

Regular reviews – The first thing to consider is that you should always keep your Will under regular review to make changes as necessary. 

The availability of No Win No Fee Agreements may provide an incentive to someone to challenge a Will on the grounds of undue influence, mental incapacity, or if a person did not correctly understand and approve the contents of their Will.

Professionally drafted Wills – Many potential problems can be nipped in the bud by having your Will professionally drafted. Ideally, if you can, you should see a solicitor in person so that they can form their own opinion as regards your mental capacity etc. They will also be mindful of any undue influence and will take steps to ensure that the Testator (the person making the Will) has the necessary knowledge to approve the Will. The solicitor will have made a file note that may later be called in evidence in Court should the Will be challenged.

Additional safeguards can be made by ensuring that the Will contains clauses that make it less likely to be challenged. An Inheritance (Provision for Family and Dependants) Act Notice can be drafted by your solicitor to be kept with the Will. 

Intestacy

If you do not leave a Will, the Intestacy Rules will apply, and the law will determine who will inherit your estate and in what proportion. This may mean that the people you did not want to inherit will do so. Unmarried couples are at particular risk where there is no Will as they have no legal right to inherit under the Intestacy Rules.

Case Study

The Testator (Mrs P) died in 2021 as a widow. She left her entire estate to her best friend, whom she had known for many years and nursed her during her final months of illness.

Mrs P had one living relative – her adult daughter, who was married. However, Mrs P had not seen or heard from her daughter since they became estranged 25 years earlier. She did not wish her daughter to inherit her estate. Had Mrs P not had a Will drafted, her estate would have been dealt with under the Intestacy Rules, and her daughter would have inherited the entire estate.

However, Mrs P had had a Will professionally drafted and her daughter’s challenge to inherit the estate on the grounds of undue influence was unsuccessful. 

Free consultation

We offer free telephone consultations to discuss your requirements and advise what should be included in your Will and the costs. A well-drafted will that accurately reflects your wishes is the best safeguard against a successful claim and will pay for itself many times over in cost savings. 

For further information about our Will drafting service, click here or call 01925 937070 or email diane@dsmlegal.co.uk for advice.

 

The contents of this article are for general information only and do not constitute legal advice.