A growing number of people are choosing to dispute Wills made by their loved ones, according to recent figures. In 2015, 116 cases were heard by the High Court – 8 times more than the 15 cases heard in 2005. In each case, family members used the Inheritance (Provision for Family and Dependents) Act 1975 to argue that the Deceased did not make reasonable provision for them.
In fact, the actual number of challenges made to Wills is far higher than those reported – because many cases will settle out of Court or only go as far as the County Court.
It is thought that complex family structures are the reason for the rise in claims. The Office for National Statistics reports a decline in the divorce rate but the growth of couples choosing instead to cohabit is likely to be at least in part responsible for this drop.
High profile cases
A number of high profile cases have reached the Courts this year – these include a feud between Sir George Martin’s children, with his 61 year old daughter Alexis describing her £68,250 inheritance as a pittance. Sir George was a well-known music producer who was often described as the fifth Beatle.
Paul Daniels’ decision to leave his £1.5 million estate to his wife of 38 years Debbie McGee also caused ripples in the family, with his son Paul Daniels Junior branding the widow a ‘Witch’.
Early in December, the Supreme Court heard the case of Heather Ilot whose mother completely disinherited her estranged only child in her Will. The Will left the majority of the £486,000 estate to three charities but Ms Ilot was awarded £163,000 by the Court of Appeal in July. The charities won the right to appeal and the judgement of the Supreme Court in this landmark case is eagerly awaited.
Challenging a Will
The growth in legal challenges means the risk that the people you choose to inherit might not see their inheritance is significant. There are a number of grounds on which a Will can be challenged – some are technical, and others relate to reasonable provisions being made. The main technical reasons for which a Will can be challenged include lack of testamentary capacity, lack of valid execution, lack of knowledge and approval, fraud or forgery, undue influence and rectification/construction. Most are self-explanatory except the last reason which is used to help rectify the situation where the Will drawn up does not properly reflect what the testator intended.
In addition, dependents may bring a claim under the Inheritance Act, arguing that the Will did not make reasonable provision for them. In these circumstances, a Court can look at the financial needs of the person and those of the other heirs before deciding whether to change how the Will distributes the estate. Both minors and adult children can make a claim, together with other people who were arguably dependent on the Deceased. So how can these claims be averted?
Avoiding challenges to your Will
The bottom line is that there is no sure fire way to stop your family challenging your Will after your death. However, by following these steps, you can anticipate potential problems and take steps to avoid a possible challenge:
Using a qualified, experienced lawyer to prepare your Will rather than using a DIY kit will generally avoid most of the technical challenges as you can be confident your Will has been properly prepared.
If you want to leave a close family member out of your Will, leaving a small gift rather than no gift can help avoid a challenge.
You should also ensure you don’t establish a pattern of payments to them whilst you are alive – as they could argue this was evidence of them being ‘maintained’ by you and that this should continue after your death.
It is also advisable to leave a letter of wishes alongside your Will, explaining your thinking – particularly with regards to disinheritance. It is not enough to say that you dislikethe person or disapprove of their lifestyle decisions. A good reason might be that you have helped them financially in the past – for example by contributing towards a deposit on their house – or you do not think they would use the money appropriately. The more information you provide, the more likely it is that a claim by the disinherited person would be defeated – but remember that there are no guarantees.
A further step you can take is to insert a ‘no contest’ clause in your Will which provides that beneficiaries will lose their inheritance if they challenge your Will and the Court rules against them. This can help to deter beneficiaries from asking for a larger share.
If you intend to leave money to charity in your Will, try making contributions during your lifetime. Gifts to charity have been challenged in the past where the Deceased had little or no contact with the charity before death.
A discretionary trust is another way you can help ensure your wishes are complied with. With this type of trust, you choose (ideally neutral) trustees who will have the power to distribute your estate to the named beneficiaries as they see fit. A huge benefit of this type of trust is that the trustees can take into account the circumstances of the beneficiaries at the time of your death and distribute according to their needs. You can leave a letter of wishes giving your trustees guidelines on how you would like them to act – although this is not binding.
Get in touch with our Later Life Planning department to make a new Will or review your existing Will.