Over recent years there has been an increasing number of enquiries relating to the challenging of a Will. It was reported in 2019 that one in four people said they would challenge a Will if they were unhappy with its contents.
Although this may suit the litigation market, it is a concern to those wanting to make a Will and rest assured that their estate will be distributed as they wish.
How can a Will be challenged?
Will challenges effectively fall into two categories:
- Claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Challenges to the validity of a Will.
Inheritance claims allow certain categories of people to seek financial provision from an estate where they have been excluded by a Will (or the intestacy rules where there is no Will) or insufficient provision has been made for them in a Will.
The most common form of validity challenge is on the basis that the person making the Will did not have the mental capacity to make it. The effect of a successful challenge is that any prior Will becomes the last valid Will. If there is no prior Will, then the intestacy rules apply.
Why the increase in challenges?
There are many reasons for this upsurge. For example:
- Family dynamics are more complex than they once were, with nearly 1 in 10 people over 65 being a divorcee.
- Over 31 million UK adults do not have a Will. The intestacy rules which apply in these circumstances can have undesirable and unexpected results.
- An ageing population with diseases such as dementia becoming more and more prevalent. It is estimated that the number of people who have dementia will increase to over one million by 2021 and over two million by 2051.
Can a challenge to a Will be avoided?
It is not possible to make a Will “bullet-proof”. There is always the possibility that a disgruntled family member will seek to challenge a Will. However, it is possible to make a Will as robust as possible.
If there is concern that a family member may bring an inheritance claim, a carefully drafted “Letter of Wishes” accompanying the Will and explaining the reasons behind its terms can be very helpful. A solicitor with experience of Will disputes will be best placed to assist with the drafting. A Letter of Wishes is not a legally binding document, but it has evidential weight if a claim is made.
If the validity of the Will is likely to be challenged, it is recommended that professional advice be sought in drafting the Will. A competent Will drafter ought to provide full and detailed attendance notes, addressing the circumstances surrounding the Will preparation and its execution which will be vital evidence if a challenge is made. If mental capacity may be an issue, for example, if the person making the Will had early-onset dementia or was particularly elderly or on heavy medication, a report from a medical professional as to whether they have testamentary capacity ought to be obtained.
Should I use free Will writing services?
It is often the case that individuals prefer not to incur professional fees when dealing with the drafting of Wills, using various templates and free Will writing services available instead.
Where there is an estate that is likely to be challenged, however, the likely fees of having a professionally drawn up Will would pale into insignificance compared to the costs incurred in dealing with a contested Will claim. In addition, many Will writers are not regulated or insured, making disappointed beneficiary claims hard to pursue.
Financial consequences of a Will challenge
The likely costs of a fully contested Will dispute, which proceeds all the way to trial, would likely be over £100,000 per party. Costs are often paid out of the estate, meaning that beneficiaries lose out and do not receive the sums that were intended for them. There is also the risk that even if a claim fails, the applicant will not have the funds to meet any costs order, and the estate and beneficiaries will not be able to recover their costs.
The person making a Will would undoubtedly prefer funds to go to their family or friends instead of the pockets of lawyers. With that in mind, a few hundred pounds on getting a Will drafted carefully and with supporting documentation is preferable to the costs of litigation.
Copyright 2021. Article was made possible by the Contentious Probate Team at Myerson Solicitors