A Battle of Wills

As part of a drive to heighten the public’s awareness of the importance of making a will, at the same time as taking part in an initiative benefiting a range of charities, MacDonald Oates recently took part in the nationwide Will Aid scheme. This unique partnership between the legal profession and nine UK charities involved MacDonald Oates and a number of other participating firms waiving their fee to draw up a basic will and instead asking the client to make a donation to the Will Aid charities.

Despite the considerable success of that initiative it is currently estimated that approximately 70% of people in this country still do not have a will. Of those who do actually have a will recent figures produced by Cancer Research UK state that three out of five people (61%) have never updated their will, despite the majority of those wills being more than five years old.

The importance of having a will in the first place cannot be underestimated as without one the deceased is said to have died ‘intestate’. If that should happen the law sets out who may deal with the deceased’s affairs but also, crucially, who should inherit their estate (i.e. their property, personal possessions and money). This creates a situation where the estate may be distributed in a way other than how the deceased wished, had a valid will been in place.

Furthermore, it is essential that the will is actually up to date and accurately reflects the person’s wishes for their estate at the time of their death. This is particularly relevant today in a strong property market where increasing numbers of people have valuable homes to leave. It is therefore essential that people fully consider the impact on their estate of major changes in their lives which may affect their assets, such as getting married, divorced or separated, having a child, moving house or starting a business. An up to date will also allows provision to be made for the partners of non-married and same sex couples (who are not in a civil partnership) who would not automatically get a share of the deceased’s estate without a will having made specific provision for them. In addition, the will should be regularly reviewed in the light of changes to inheritance tax legislation.

However, that is only part of the story.

Although it is important to ensure that you have a professionally drafted will which is properly executed, there are ways by which a will may be challenged in certain circumstances. This has been seen recently following the deaths of celebrities such James Brown, where t he partner of late soul legend has launched a legal bid for half of his estate and access to their home, and Anna Nicole Smith, where a high profile dispute over her estate has been sparked following her sudden death.

Commonly, wills are disputed where there is doubt whether they have been correctly executed (such as properly witnessed). A will may also be challenged if there is reason to believe that the person making the will did not have the mental capacity to make or understand the will, or if they made the will under the influence of a third party.

As well as challenging a will on that basis it may be possible to make a claim if you feel that the will does not provide you with reasonable financial provision in which case a claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975. Claims under this Act must usually be brought within 6 months of the Grant of Probate or Letters of Administration (where there is no will) and so must be brought without delay.

Alternatively, you may even be able to bring a claim if you can show that, for example, you were promised a share of a house by the deceased, that you relied on that promise but where that promise was subsequently reneged upon or is contradicted by the contents of the will.

However, challenges to a will can be expensive and there is a common misconception that the costs will be paid for out of the estate, which is not always the case. The cost of having a valid, up to date will in place is therefore well worth paying if it reduces the likelihood of it being challenged at a later date.

Whilst there are a number of practical steps that can and should be taken to avoid leaving an estate that may otherwise be the subject of a dispute it is not always possible to avoid one arising. The clear message is that both in terms of preparing a will (and any update to it) in the first place or when looking to bring a claim against a deceased’s estate, specialist legal advice should be sought.