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How to prevent your List Will and Testimony being challenging

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This summer, the Court of Appeal made headlines when it overturned the will of charity donor Melita Jackson . She had stipulated that her £500,000 estate be distributed among animal charities, leaving nothing to her daughter, Heather Ilott. The court heard how Mrs Jackson had never forgiven her daughter, 54, for eloping when she was 17. Judges described Mrs Jackson’s actions as “unreasonable, capricious and harsh”. The court found that she failed to make “reasonable provision” for her daughter in her will, and awarded Mrs Ilott, who lives on benefits, £164,000 from the estate.

The judgment attracted harsh criticism because it went against the well-established principle in England and Wales of “testamentary freedom”, where every individual is free to leave their estate to whomever they wish. Lawyers are undecided about whether the Jackson/Ilott case could set a precedent for more wills being contested – and with success.

Could your will ‘fail’ – or be successfully challenged? The best way to make sure your wishes will be followed is to understand the grounds on which wills are successfully challenged.

Challenges to the will’s validity Claimants can cite a number of reasons why a document doesn’t fulfil the technical requirements of a will. It could be argued that the writer was not in a fit state of mind or was under undue influence from another beneficiary, for instance. It could be claimed the will was forged by another party or that there weren’t enough witnesses present.

To make the Will as watertight as possible, there are some key steps you should take. Meet with your Will writer on your own, and don’t have a friend or family member drive you to the appointment or wait outside. This can help avoid claims of undue influence.

Discuss the assets you own. If you want to exclude a spouse, or family member, give a very detailed explanation of why and make sure your solicitor notes this down.

If you are aged 70 or over, or have a history of mental illness, it might be worth asking your GP for what is known as a “capacity report”, which states that you are of fit mind to write a will. your Will writer may ask you to do this, even if you feel it is unnecessary. If the Will is challenged down the track and a claimant says that you were not mentally capable of writing a Will, this document will go a long way to fighting the claim.

It is also worth writing a “letter of wishes” to add to the file. This explains, in your own words, who you want to benefit from your estate. If you want to exclude someone, include specific reasons why. “Avoid spiteful language here,” Mr Barnett said. “The court will not look favourably on it. It is much better to couch things in positive, factual terms.”

Disputes that fall under the heading ‘proprietary estoppel’ Claims can be brought if you promised to leave assets to someone, usually property or land, but fail to do so in the will. The claimant can say that they have suffered detriment – financial or otherwise – because they relied on the promised inheritance.

Claims under the Inheritance Act Unlike the first two categories, it is difficult to prevent claims being brought under the Inheritance Act. The act allows your current and former spouse (if separated but not divorced), children, cohabitants and financial dependants to bring a claim if they feel they have not received enough in your Will.

The court considers whether the Will makes “reasonable provision” for the claimant, taking into account the need for support and maintenance. The status of the claimant is particularly relevant. A surviving spouse is entitled to a higher standard of provision than other claimants, such as children, who are limited to reasonable provision for their maintenance only.

The court may decide that a financially stable adult child is not owed anything in maintenance, but a child living on benefits, as in the case of Heather Ilott, might be. If you want to exclude a family member altogether, but are concerned about future claims, it can be a good idea to leave them something in your Will. 

One approach that I sometimes recommend to wealthy clients is to take out a life policy and leave it to that person. It will cost a few pounds a month during their life and it means that the person will get some money, but it doesn’t take assets away from your intended beneficiaries. It might be enough to deter them from challenging the will and, if they do make a claim, it could help water down their challenge in the eyes of the court.

To find out more about will writing click here

Posted by MMB Finance Swindon on 26 September 2015