Where there’s a will, there may be a dispute

Last-Will-and-Testament-image-by-Melinda-Gimpel-on-Unsplash.

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.

Many Will disputes involve adult children who have been cut out of Wills or left less than they expected.

Why are more Wills being contested than ever before?

Well, 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 take action.

Secondly, family trees are more complicated than they once were with numerous branches formed by divorces, remarriages, step-siblings and cohabitees. 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.

Thirdly, publicity in the media has made more people aware that it is possible to contest a Will.

Fourthly, people have been living longer. This means that more people have been making Wills when they are in poor health and this can prompt disappointed relatives to challenge a Will.

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 that people draw up themselves.

What are the grounds for challenging a Will?

A Will can be legally challenged if there is a question mark over the mental capacity of the person at the time they made the Will. There is also a possibility of a challenge if there is proof that the person was under pressure to write what they did.

It can also be challenged, in some circumstances, if no provision was made for a dependent in need.

Technical errors in the paperwork can also lead to legal claims.

But as Rebecca Head, a director and Wills & Probate solicitor at Four Oaks Legal Services said: “A Will cannot be challenged JUST because relatives and friends think that it’s unfair or because siblings or other beneficiaries have not been left equal amounts of money or possessions of a similar value.

“Something called ‘testamentary freedom’ is always given priority. This means that we can leave what we want to who we want in our Wills.”

Rebecca is a STEP Practitioner, the top professional qualification for a Wills, Trusts and Probate solicitor.

She added: “A parent with two adult children may choose to leave more in their Will to one than the other for a variety of reasons. Perhaps, one child received more financial support than the other when the parent was alive, or one of them did more to help their parent than the other.”

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.

Adam Penn, a Four Oaks’ solicitor with experience of handling contentious Wills, said: “Emotions run high following a bereavement. But, as well as grief, there can be anger and resentment. It’s a time when old family grudges can rapidly escalate.”

Adam, who along with Rebecca also holds the STEP qualification, added: “We would advise anyone to think carefully before launching a court challenge. Losing the case could result in the challenger being ordered to pay the legal costs of both sides, which can run into hundreds of thousands of pounds.”

If a Will dispute goes to court, there will need to be robust evidence in order for it to be overturned. Evidence from a qualified solicitor, who took appropriate and thorough notes and obtained all the necessary information, is a major way to prove the validity of a Will.

A Will that has been professionally prepared is rarely declared invalid.

Rebecca and Adam recommend that parents talk to their children about their Will and the reasons behind the bequests they have made.

Rebecca said: “We understand that it can be a difficult conversation, and it’s understandable that they may want to avoid it, but they could be sparing their loved ones a nasty shock further down the line.”

Another piece of advice is to make a list of your personal possessions and state who you want to have them. It makes your wishes clear and can avoid emotionally-draining arguments.

If you still feel a Will is unjust, take advice from a solicitor with experience of handling contentious Wills. They will understand the highly-charged feeling you are experiencing and can give you independent and sound advice.

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.

Just because a Will writer is a member of the Society of Will Writers or the Institute of Professional Will Writers, does not mean they have the same expertise as a Solicitor or a STEP-practitioner, who will have the letters TEP (standing for Trust and Estate Practitioner) after their name.

Using an experienced solicitor will ensure there is more background information available to a judge in the event that a case does go to court. It may also deter people from challenging the will, because they will see that the solicitor took all the steps to prove that their client had capacity, understood the bequests and provisions they were making and was not under undue influence.

If you want help or advice from us, contact details for all our team – including Rebecca and Adam – are here.