In the second of a two part series, solicitor Jane Gray discusses the various ways of disputing a will.
In my colleague Duncan’s post yesterday, he examined the various things that can occur in fragmented families following a death if the deceased person made no will or did not provide for one or members of the family in a will they did make.
Where there is a will in existence great care must be taken to ensure that it accurately reflects the wishes of the person who made the will, and it is equally important that the will maker has sufficiently considered all the potential claimants against the estate. I have been involved in cases where “secret trusts” were set up, and only the trustees of the estate and the person making the will knew about the existence of someone completely unknown to the rest of the family. This was usually someone who was in an extra marital relationship with person who has died or a child of that relationship.
It is worth remembering, especially if a lot of money is at stake, that a will can easily be vulnerable to dispute and counterclaims after the person’s death. Someone might have been counting on a legacy only to find themselves bitterly disappointed.
A sensible option that can help to reduce the risk of a successful claim is adding a private letter of wishes, or ‘side letter’. This is an additional document placed with the will setting out in detail the reasons why you may have wished to exclude a certain person from the will or made a reduced provision for that person. This will help to explain to a court hearing a later claim why the will doesn’t make provision for someone it might be expected to. Additionally, a ‘will trust’ allows trustees to add a claimant as a beneficiary and can be used as a useful tool to negotiate a settlement and avoid what can be expensive litigation.
Another point worth considering is that existing wills are automatically revoked if the person who made them marries again, unless the will clearly states it was made in contemplation of marriage. Similarly, if a will maker completes a divorce, any inheritance for the spouse specified in their will is also revoked.
Disputing a will
There a number of possible legal approaches open to someone who wishes to dispute a will, depending on the circumstances.
1/ A claim that the person making the will did not have the mental capacity (i.e. legal capability) to make a valid will, due to an illness such as dementia or a mental disability.
A person making a will must:
- understand the purpose of making it and its likely effects.
- have an appreciation of what they own and therefore what possessions they be will giving out on their death through their will, and
- have an appreciation of the moral claims on their estate by their nearest and dearest, even if they choose not to recognise these when making their will.
If there is a legitimate reason to doubt the will maker’s capacity then a claim can be made. The claimant would argue that the will was made at a time when the person did not have capacity and should be struck out, leaving an earlier will (if there is one) valid in its place. However, it would be for the claimant to prove that the will maker did not have capacity.
2/ A claim that the person making the will did not know of or approve the contents of the will.
It is essential that a will maker understands the effects of the will, even if it was drawn up by a solicitor, and that they agree it reflects their wishes. For example, they should carefully read the document through. If they have problems with reading – if, for example, they don’t have their reading glasses with them, or they are unable to read – then the will should make reference to someone reading the will to them, so it’s clear they have taken it in and agreed it reflecsts what they intended to set down in writing.
If there is a solid reason to doubt that the person knew or approved of the contents of the will, and this this can be proved, then it could be deemed invalid.
3/ A claim that the will was not written or signed in the way required by law.
The law says that a will needs to be set out in a specific way. It states it has to be signed in the presence of two witnesses who are present at the same time, and that the will maker must intend for their signature to give effect to the will. It is important that care is taken when choosing witnesses, because a gift made in the will to a witness will most likely not be deemed valid, and that could leave someone very disappointed.
4/ A claim that the will contains errors or that later amendments were made.
A will should not be amended after it has been signed. Where amendments are made they are presumed to have been made after the will was signed and therefore not valid. In addition, amendments can obscure the original wording and this can cause problems. It is better is to alter a will in a legally valid way by drawing up another document called a ‘codicil’, which itself must be signed and witnessed in the same way as a will. Again, specialist advice should be taken when thinking about amending or updating a will.
Remember too not to destroy any previous wills or codicils. They should be kept “just in case” the worst happens and the latest will is found to be invalid.
How can you protect your will?
The simplest and most effective way to reduce the chances of your will being disputed is to have it drafted by a specialist solicitor. Drafting a will in a way that is not vulnerable to legal challenge is a real skill and takes time. Cost should not be the only factor you consider when the time comes to make a will.