In the last few years, solicitors have seen a marked increase in the number of disputes over Wills. There seem to be a number of reasons for this: many families now have more assets to dispose of; family structures are changing with an increase in cohabitation and second marriages and potential strains between children, step-parents and step-children; people are living longer and making Wills at an advanced age which may be open to challenge; and with access to the internet, people are becoming better informed and more willing to challenge a situation they see as unfair.
The most fertile ground for disputes arises from home-made Wills; we would always recommend that a Will should be professionally drawn up by a solicitor specialising in this area of law. In that way, the solicitor will have interviewed the client making the Will and a written attendance note will be made and can be produced in evidence at a later date if necessary. If the solicitor has any concern that the client may be confused or lacking mental capacity, the “golden rule” is that the solicitor should consult the client’s doctor. If the doctor confirms that the client is mentally well enough to make a Will, the doctor may be asked to act as one of the witnesses to the Will and can then give evidence at a later date as to mental capacity if the Will is challenged.
Any challenge to a Will must be based on legal grounds; these include lack of mental capacity when the Will was made, “undue influence”, that the Will was not properly executed in front of two witnesses and “want of knowledge and approval”. A Will can also be challenged on the basis that it does not make reasonable financial provision for a person for whom it should provide; under the Inheritance (Provision for Family and Dependants) Act 1975, categories of those who may claim include spouses or civil partners, former spouses or civil partners who have not remarried or entered into a subsequent civil partnership, children, cohabitants (of 2 years or more) and anyone who was being maintained by the person who has died.
Another aspect that can lead to bitter disagreements is division of personal effects. Although we would not suggest including lengthy lists of belongings in the Will itself, a separate list of your wishes can be left with the Will, which, whilst not legally binding, can be very helpful for the family with the job of clearing the home of the person who has died, and can avoid a dispute developing.
Disputes over Wills can often be resolved without resorting to action in Court and we would always encourage this. As solicitors, we will try to bring the two sides together, perhaps hold a family meeting where both sides can put forward their points of view and reach a compromise if possible. Administering an estate involving a dispute is far more expensive and time-consuming than one where the family is in agreement and the parties in dispute may need to instruct separate solicitors.
In conclusion, we would encourage you to make a professionally drawn Will, to ensure that your Will is up to date and to discuss with us any concerns you may have that the Will might be challenged. In some cases we may suggest that you record in a separate letter to be left with your Will your reasons for leaving your estate in a certain way and this may persuade your family to accept the provisions of the Will and so avoid a dispute.
If you would like advice on this area of law, please initially contact Jane Forbat on 01737 854522 or jcf@morrlaw.com or David Kingham on 01737 854529 or dck@morrlaw.com .
The most fertile ground for disputes arises from home-made Wills; we would always recommend that a Will should be professionally drawn up by a solicitor specialising in this area of law. In that way, the solicitor will have interviewed the client making the Will and a written attendance note will be made and can be produced in evidence at a later date if necessary. If the solicitor has any concern that the client may be confused or lacking mental capacity, the “golden rule” is that the solicitor should consult the client’s doctor. If the doctor confirms that the client is mentally well enough to make a Will, the doctor may be asked to act as one of the witnesses to the Will and can then give evidence at a later date as to mental capacity if the Will is challenged.
Any challenge to a Will must be based on legal grounds; these include lack of mental capacity when the Will was made, “undue influence”, that the Will was not properly executed in front of two witnesses and “want of knowledge and approval”. A Will can also be challenged on the basis that it does not make reasonable financial provision for a person for whom it should provide; under the Inheritance (Provision for Family and Dependants) Act 1975, categories of those who may claim include spouses or civil partners, former spouses or civil partners who have not remarried or entered into a subsequent civil partnership, children, cohabitants (of 2 years or more) and anyone who was being maintained by the person who has died.
Another aspect that can lead to bitter disagreements is division of personal effects. Although we would not suggest including lengthy lists of belongings in the Will itself, a separate list of your wishes can be left with the Will, which, whilst not legally binding, can be very helpful for the family with the job of clearing the home of the person who has died, and can avoid a dispute developing.
Disputes over Wills can often be resolved without resorting to action in Court and we would always encourage this. As solicitors, we will try to bring the two sides together, perhaps hold a family meeting where both sides can put forward their points of view and reach a compromise if possible. Administering an estate involving a dispute is far more expensive and time-consuming than one where the family is in agreement and the parties in dispute may need to instruct separate solicitors.
In conclusion, we would encourage you to make a professionally drawn Will, to ensure that your Will is up to date and to discuss with us any concerns you may have that the Will might be challenged. In some cases we may suggest that you record in a separate letter to be left with your Will your reasons for leaving your estate in a certain way and this may persuade your family to accept the provisions of the Will and so avoid a dispute.
If you would like advice on this area of law, please initially contact Jane Forbat on 01737 854522 or jcf@morrlaw.com or David Kingham on 01737 854529 or dck@morrlaw.com .
