How to make sure your will is not contested
Monday, September 22nd, 2008
You may think writing a will is the best way to stop any family arguments on your death, but that may not be the case. According to one leading law firm disputes over wills and trusts have trebled over the past few years. Fay Copeland, head of contentious trusts and probate at Wedlake Bell said: “In previous years we have only been asked questions about the validity of wills. Now people are willing to pursue their claim through the courts. The two main reasons for this are that people are leaving more wealth, so it becomes financially worthwhile to contest a will.
The rising divorce rate is creating more complex family structures and clouding the issue of who should get what.” Damian Bloom, partner, trusts and personal tax at Berwin, Leighton Paisner added: “Beneficiaries are less willing to accept that the deceased knew best. They ask themselves what they think they should have been entitled to first and then decide whether to contest the will.”
Under British law you can leave your estate to whomever you wish. In England and Wales, a will can be challenged under the 1975 Inheritance (Provisions for family and dependants) Act if the person was financially dependent and this ceased or was substantially reduced on death. In Scotland, spouses, civil partners and children have a legal right to a proportion of the estate whether there is a will or not. Under these rules both spouse or civil partner and any children are entitled to a third of the estate each – children share the third between them.If there are no children then the spouse or civil partner will be awarded half the estate. Wills can also be challenged if fraud is suspected, they are not written and witnessed correctly, the person was believed not to be mentally able to have written or understood the will or it is believed that undue influence was exerted on them. These areas are much more difficult to prove however as it often becomes one person’s word against another’s. So what can you do to make sure your will is not contested?
Tim Logan, head of the private client department at Colchester based Ellisons Solicitors said: “You can’t make a will totally watertight as the courts have a lot of power to vary them under the 1975 Act. But if you do want to leave differing amounts or leave people out of a will, then you can write what is called an Inheritance Act Statement or Declaration alongside your will. This statement, typically written at the same time as your will, would set out your reasoning for writing your will as you have. It is a legally recognised document which would be taken into account if the will was contested, although it is not legally binding on the court.” He also advises that people tell their families of their actions in person to explain the reasoning before it ends in court.As he points out the cost of court action are met by the estate reducing the amount of money available to all beneficiaries. Julie Hutchison, estate planning specialist at Standard Life says a letter of intent giving guidance on the will – for example how any children are to be raised – can also be used to explain the will. She also said: “It is vital to keep your will up-to-date as having an out-of-date will is as dangerous as dying without one.” For example you may have made your peace with someone previously excluded from the will.
This is an article taken from The Telegraph by Rosanna Spero 17/09/08
