Is My Will Watertight?
You may think that, once you have made your Will, you can sit back content in the knowledge that, upon your death, your estate will pass to precisely whom you wish, be they your family, friends or the local cats home. You should be right. Clearly you should have the right to choose that your hard earned savings and assets pass to whomever you see fit. In certain circumstances, however, unless the correct advice is sought and the appropriate steps taken, this right can be compromised. It is for this reason (and in particular if you wish to distribute your estate in a way that may leave certain expectant people disappointed) that you should seek expert legal advice as to the drafting of your Will.
It would probably be fair to say that the majority of individuals simply wish to leave their estate to their surviving family, be that their spouse, children and grandchildren or perhaps more distant family. That is not to say, however, that this is always the case or, indeed, should be. Many people wish to exclude their family for perfectly valid reasons and are entitled to do so by way of their Will. When making such a gift, however, the person making that Will (“the Testator”) will be aware that, upon their death when the contents of the Will are revealed, some controversy may be caused. If the appropriate steps have not been taken during the drafting of that Will then this leaves open the possibility that disappointed beneficiaries may be able to challenge the contents and ultimately, if that challenge is successful, the estate may pass to the very people whom the testator wished to exclude.
So, on what grounds are Wills commonly challenged and how can such a challenge be avoided or defeated? One possibility is that the disappointed beneficiaries will claim that, when the testator gave the instructions for and signed their Will, they did not have the ‘requisite testamentary capacity', i.e. they were suffering from an impairment that meant that they were not aware of their actions or the implications of the same. A common example of this would be Alzheimer's disease. When taking instructions for a Will, a solicitor will ask various questions designed to demonstrate that a testator does, indeed, have the requisite capacity. Moreover, it is good practice if a client wishes to make a Will containing what could be deemed as ‘controversial' bequests (particularly when that client is elderly) to obtain a medical opinion (for example from a testator's general practitioner) as to their ‘mental capacity' at the time of signing the Will. This then avoids any doubt in the future and provides external, objective and expert opinion as to the testator's state of mind. It is our experience that, rather than take offence at the suggestion, our clients are reassured that the step has been taken to ensure that their estate passes according to their wishes.
It is also possible that a disappointed beneficiary may allege that a testator was unduly influenced as to the terms of the Will by those who have in fact benefited under that Will. Again, a contemporaneous medical opinion can help weaken such arguments. It is also important that the testator is seen alone by a solicitor who can then ascertain whether such a gift is, in fact, being made of the testator's own volition. The solicitor will then make a comprehensive contemporaneous note of that meeting which can, if necessary, be used as evidence if the contents of the Will are contested. If the solicitor is uncertain as to whether the testator is being influenced in some way then they will request a further meeting alone to make absolutely certain of the situation. Consideration of potential points of dispute at the time of drafting the Will can help avoid the risk of a challenge to a Will and the time and cost of such a challenge.
Sometimes, disappointed beneficiaries try to rely upon a promise made by the testator in their lifetime that they claim that they have acted to their detriment in reliance upon. This is a legal concept known as ‘proprietary estoppel'. If this can be proved then the person who acted to their detriment may be able to claim a share of the estate. In these circumstances, the onus is upon the person claiming the detriment to prove it but testators should bear this in mind and think carefully before making promises that they do not necessarily intend to keep. If you are unsure of this concept or feel that it may affect you then you would be advised to seek legal advice, as it is a fairly complicated issue.
There are, however, some circumstances in which it is very difficult to avoid a challenge to a Will. If, for example, no provisions has been left for a spouse then they are entitled to bring a claim under what is known as The Inheritance (Provision for Family and Dependants) Act 1975 for ‘reasonable financial provision'. Similarly, a child under the age of 18 is entitled to have a claim brought on their behalf against an estate for maintenance if they have not been provided for or if such provision is not deemed adequate. Certain classes of people are also entitled to bring a claim, even if they are adult, if they are deemed ‘financially dependent' upon a person and have not been adequately provided for. This class of people can include non-married co-habitees and stepchildren. Once again, if you do feel that this situation is relevant to you, either as testator or potential beneficiary, then you should seek legal advice.
In conclusion, therefore, it may, unfortunately, not simply be enough to draw up a Will and hope that your wishes will be respected and go unchallenged, particularly if you suspect that they may cause some controversy. By obtaining expert legal advice, however, you can minimise the risk of such a challenge being initiated and ultimately successful and thus safeguard your wishes, as much as possible.
MATTHEW EVANS
SOLICITOR
November 2004
This article gives a general overview only and cannot be relied upon in any particular case. The need for specific legal advice must always be considered.
For further information, please do contact Deirdre Moss/ Matthew Evans on 01793 527141 alternatively by email on matthew.evans@lemon-co.co.uk. Please visit our website on www.lemon-co.co.uk for other articles
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<p><strong><a href="http://www.lemon-co.co.uk/article_will-watertight.php">Is My Will Watertight? </a></strong><br />
You may think that, once you have made your Will, you can sit back content in the knowledge that, upon your death, your estate will pass to precisely whom you wish, be they your family, friends or the local cats home....</p>