You only need to look to the media to see a notable increase in the number of people looking to contest a relative’s will. The case of Heather Ilott, which we were involved in was well publicised across the national media.
Steps to avoid will disputes
Despite this trend, there are steps you can take to ensure your wishes are carried out. The first thing to do is make sure you have a will in place. Sounds simple and obvious, but roughly two-thirds of the adult population don’t have a will, and it is the only way to ensure your wishes are documented and can be carried out. The intestacy rules are arguably outdated and do not reflect modern society so will often not operate in the way you would want or expect.
Secondly, make sure you keep your will up to date. As family and financial circumstances change a will can quickly become out of date and no longer reflect your wishes leading to disappointment for family members or dependents and potentially a dispute.
Thirdly, and particularly if your family circumstances or wishes suggest that a dispute is likely, it is important to take professional advice when making your will. Although that involves costs, those costs are negligible compared to the costs of contesting a will if you don’t. A solicitor will ensure that they have considered whether you have the requisite capacity to make the will and take the appropriate steps to ensure you know what you are doing and the will represents your wishes. These are the cornerstones of ensuring validity. The solicitor’s file will record all of those things and be available as evidence in the event of a dispute. While the number of disputes is on the rise, at the same time, it remains very difficult to challenge a person’s will, and recent case law has held that it is “a very strong thing” to find a will to be invalid where it has been prepared by an independent solicitor. If the will is homemade there is no independent evidence, and so a dispute is more likely to escalate, and if a beneficiary has been instrumental in the preparation of it, then this is automatically a suspicious circumstance.
It is common that for more elderly or vulnerable people, a family member will be assisting them in the preparation of the will and there is no problem with that but to protect them from the suggestion that they are exerting undue influence the solicitor will take the appropriate steps to see the client alone. Similarly, if there are concerns over capacity, then good practice for the solicitor will be to obtain a contemporaneous medical report confirming capacity which is really useful as evidence in the event of a challenge.
A solicitor will also ask questions of you as to why you are making the provisions you are and will record those reasons. Sometimes it will be appropriate for you to write a separate letter to explain why, for example, you are making greater provision for one party over another or, excluding a party altogether. If you can make your wishes to your family clear during lifetime then this is preferable as otherwise, and often, the first time a family member will find out that they have been disinherited is after death when they cannot ask why. Without an explanation being offered to them, however hard to potentially hear or read, there is shock, confusion, possible regret, and concern or suspicion that something could be amiss. Often a resolution of the dispute would be to be assured that there is not, and to understand why. Often there is a simple, rational explanation.
Reasonable financial provision
Even if all the appropriate steps have been taken and the will is clearly valid, a disappointed beneficiary in need could make a claim for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. If you think an aggrieved family member is likely to challenge the will regardless, or would seek to bring a claim under this Act, then it may be sensible to make some provision for them, as, again, this could be less costly than the costs for the estate of a dispute. The provision could be made conditional on them not bringing a claim, termed a ‘sweetener legacy’ in the hope that ‘a bird in the hand is worth two in the bush’.
Another option is to leave some or all of your estate into trust with detailed guidance to the trustees that provision can be made to a disappointed beneficiary who brings a challenge to the extent required to achieve an early settlement with them, to avoid your ‘real’ beneficiaries having to deal with the costs, delay, risk and stress of the dispute. You could also make alternative provision during lifetime by taking out a life policy for example, with the proceeds payable to those beneficiaries, so your ‘real’ estate is protected for your ‘real’ beneficiaries.