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Should revisiting your Will be your new years resolution?

View profile for Jordan Davies
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Mental capacity - a case law review - Tociapski v Tociapski

More people than ever before are now challenging Wills and making claims against estates, meaning that it has become more important than ever to ensure everything that you have implemented is still fit for purpose. Or if you haven’t put anything in place, now may be the time to do so!

Coming into the new year, it is important to consider what provisions you have in place and whether everything you have implemented is still accurate, up to date and most importantly, does what you need it to.

Spending Christmas with, or without, family can amplify emotions and highlight how important it is to have all your affairs in order. The majority of claims made against estates are brought by family members of the deceased. Despite it being commonplace for a person to leave their estate to their family, this is not always the case and it can often be for good reason. Each person has the right to leave their estate to whomever and however they wish, and this right should be protected.

Within this article, we will consider some ways to ensure that your estate is distributed how you intend it to be, and provide some tips on how you can try and avoid any claims being made against the estate in the future.

What are the different claims people can make against an estate?

It is important for us to first consider the types of claims that can be made against an estate once someone has died.

Firstly, and most commonly, it is possible to challenge the validity of a Will. The grounds under which a person may challenge the validity of a Will include mental capacity, knowledge and approval, undue influence, valid execution, fraud and forgery.

Secondly, a claim can be brought under the Inheritance (Provision for Family and Dependants) Act 1975. This act allows people to claim against an estate if they have been excluded from a Will or have been left without reasonable financial provision.

We must now consider how to protect an estate from such potential claims in the future.

Ensure that you have a Will

The easiest and most important way to dictate how you wish for your estate to be distributed following your death is to execute a Will. Within your Will, you are able to detail what aspects of your estate should be passed to which specific individuals and under what terms.

You should always draft a Will with a qualified professional as this reduces the chances of the Will being deemed invalid. If a Will has been drafted by a professional, a court will always looks to uphold its validity. If a Will is a homemade Will, there is often more chance that some aspect of the Will or its execution will be deemed invalid, allowing third parties opportunity to bring successful claims.

In addition, you must also make sure that the Will is up to date. Relationships and circumstances change all the time and this may affect your Will and how you wish for your estate to be distributed.

Execute a letter of wishes

When instructing a professional to draft your Will, you can also ask them to draft a letter of wishes or letter of intention. This letter will accompany your Will and provide greater context as to the reasoning behind the terms of the Will.

This can be helpful in defending claims of lacking mental capacity or lack of knowledge and approval, as it is an additional document further elaborating why you have drafted your Will in this way and the reasons for doing so.

Examples of its use can include where a parent has a good relationship with one of their children and a poor relationship with another. Sometimes parents become estranged from their children and have no contact with them for many years. If the parent were to exclude the estranged child from their Will, the estranged child may seek to make a claim against the estate. If a letter of wishes had been executed alongside the Will, detailing the reason for the exclusion, the court is more likely to consider that the exclusion was the deceased’s true intention and any such claim would have a greater defence.

Update beneficiaries of pensions and insurance policies

In present day, people often have insurance policies and pensions that provide for beneficiaries upon the policyholder’s death. It is important to ensure that the beneficiaries of such policies and pensions are kept up to date.

When someone gets divorced, if the spouse had been the main beneficiary of the Will then the divorce will nullify the Will and the partner’s inheritance therein. The same does not apply for policies and pensions. People often leave their pensions and insurance policies to their spouse and so if a separation occurs, it is imperative to ensure that the beneficiaries of such policies are updated.

What next?

If you have not yet drafted your Will or feel that the terms of your Will may need updating, it is important that you look into this at the earliest opportunity. You may already have a Will in place but feel it is not secure enough to withstand any potential claims against it and you may wish to have it re-drafted and re-executed alongside a letter of wishes. Please get in touch with our Wills and probate department and they will be able to assist you.

If you require advice in relation to claims against an estate, whether it be a validity challenge or a claim under the Inheritance Act, please get in touch with our specialist inheritance disputes team and we will be happy to speak with you. Call us on 0161 696 6178.