We’re seeing a steep increase in the numbers of people challenging Wills across the UK.  This is backed up by a survey claiming that one in four people said they would challenge a Will if they were unhappy with the provisions it made.

Why are more Wills being contested than ever before?

1. Firstly, a lot of people are wealthier. This is often due to big rises in property values. This means there is more at stake, so people are motivated to act.
2. Secondly, family trees are more complicated than they once were. When someone dies without leaving a Will there are strict rules that dictate what happens to their Estate. For example, a live-in partner could lose their shared home and receive nothing.
3. Thirdly, publicity in the media has made more people aware that it is possible to contest a Will.
4. Fourthly, people have been living longer. This means that more people have been making Wills when they are in poor health; this can prompt disappointed relatives to challenge a Will. Additionally, more people have died unexpectedly during the recent pandemic, sometimes without updating their wills.
5. Finally, writing Wills remains an unregulated area. Wills prepared without an experienced solicitor’s input may contain mistakes or miss out vital steps or information. This makes them easier to challenge. The same is true of DIY and online Wills.

What are the grounds for challenging a Will? 

A handful of reasons a Will can be challenged:

• The mental capacity of the person at the time they made the Will is questionable.
• If there is proof that the person was under pressure to write what they did.
• In some circumstances, if no provisions were made for a dependent in need.
• Technical errors in the paperwork.

However, the priority is always testamentary freedom; this means that we can leave what we want to who we want in our Wills. Wills cannot be challenged just because relatives and friends think it is unfair.

How to avoid a Will being challenged

The main way to avoid a Will being challenged is to have it drawn up by a solicitor experienced in family and estate planning. A Will that has been professionally prepared is rarely declared invalid. Additionally, have a solicitor help you write a letter of wishes to support your Will.

How to choose who writes your Will

Choosing a STEP member can be an advantage as they will have been trained to the highest level and have relevant experience. Adam Penn and Charlotte Taylor are STEP Practitioners, the top professional qualification for a Wills, Trusts and Probate solicitor.

A Will writer that is a member of the Society of Will Writers or the Institute of Professional Will Writers, does not have the same expertise as a Solicitor or a STEP-practitioner, who will have the letters TEP after their name. TEP stands for Trust and Estate Practitioner.

If you want help or advice, contact us on 01543 440 308 or email us at adam@fouroakslegalservices.com

A gift to the charity Oxfam has highlighted the importance of making a provision in your Will for the unlikely event that the whole family should die with you or before you.

Richard Cousins was the head of a successful Catering company and had an estate worth more than £40m. On 31^st December 2017, he was flying with his fiancée and 2 sons (aged 25 and 23) when the plane crashed into a river in Australia and all on board were killed.

Cousins’ Will provided that his estate would pass to his sons who sadly died with him. However, his Will also included a long stop provision.  The provision stated that should his sons also pass away then the bulk of his fortune would pass to his chosen charity, Oxfam. Without this provision, his estate would have been governed by intestacy rules.

How we can help

At Four Oaks Legal Services, we look at those close to you that you wish to provide for in the first instance but often, we will advise you to consider the worst-case scenario. This is requires naming a ‘long stop’ individual or charity who would be entitled to benefit should those first in line pass away. We do not want your hard-earned money to be left with nowhere to go but the taxman.

Hopefully, the worst won’t happen but if it does then it’s important to have a plan in place.

If we can help with updating or making a new Will for you, please contact Adam, Charlotte or Joanna on 01543 440 308 or e-mail us at adam@fouroakslegalservices.com

 

What do you do if a company’s sole member and director dies leaving the company unable to function without them, and you’re the executor of the will?

The case of  Williams v Russell Price Farms Service (2020) was a turning point for business law. The High Court granted the application made by executors under section 125 of the Companies Act 2006 (the Act) in order to rectify the company’s register of members following the death of the sole director and shareholder of Russell Price Farms Services.

Why is this case so important?

As the deceased was the sole member and director of the company, when he passed, it left the company withy no directors or living shareholders. This means that no one was able to do the necessary things such as accessing the bank account to pay creditors and running the day-to-day operations. Additionally, there was no mechanism in place for appointing new directors as the articles of association did not give the executors the power to resolve the issue. This is what lead to the executors to apply to the High Court to replace the deceased name with their own name. By doing this, they would be able to pass a resolution and appoint new directors to run the business.

In the application to the High Court, the executors stressed their intentions to apply for probate which reportedly, was important in the court’s decision to grant the order. The High Court granted an order, in accordance with section 125 of the Act for rectification of a company’s register of members to replace a deceased sole member and director with the executors named in his will.

What does this mean?

Firstly, this case highlights the importance of a company’s statutory registers as it does not appear enough to reply on the Companies House records. Also, it shows the importance of a company’s articles of association and ensuring that they are flexible. This will help to deal with unfortunate circumstance, protecting your company if things like this ever do happen.

Secondly, this case shows that you can apply to the court to rectify a company’s register of members. However, it can be a complicated process with many moving parts, so it is best to seek legal advice before doing so.

At Four Oaks Legal Services, we have the perfect balance of business law and private client law meaning we are well equipped for the job. If you want to discuss how we can help, please contact us on 01543 440308 or email us at stuart@fouroakslegalservices.com