2nd November 2015

Will drafting – the importance of getting it right

Patrick Jenkins, Partner and Head of Litigation at MacDonald Oates LLP, looks at the legal issues which can arise where no will, or a deficient will, has been prepared and why it is important to ensure that you have an up-to-date and properly executed document.

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 possession 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.

It is also 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.

However, that is only part of the story.

Challenges to a Will

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 still be challenged in certain circumstances.

Commonly, wills are disputed where they have not been correctly executed (such as not having been signed, or properly witnessed). A will may also be challenged if there is a reason to believe that the person making the will did not have the mental capacity to make it, or if they did not understand the full terms and effect of their will, the extent of the property within their estate or the claims to which they ought to give effect.

There may also be a case where a third party has exerted pressure on the deceased and where that coercion amounts to ‘undue influence’ on the deceased to make a particular will.

In other (albeit less common) cases, it may even be possible to prove that the will has been forged or is the product of a fraud.

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

Inheritance Act claims

As well as challenging the validity of the will itself, even where the will is valid it may still be possible in certain circumstances to make a claim if it does not provide an individual with reasonable financial provision, in which case a claim may be made under the Inheritance (Provision for Family and Dependents) Act 1975. Claims under this Act must usually be brought within six 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 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 assurance to your detriment but where the promise was subsequently reneged upon, or is contradicted by the contents of the will. This possible claim is even available where the promise was not in writing.

Even if none of the claims referred to above are open to you to pursue, it may be possible to apply to the Court for the will to be rectified if you can show that it fails to carry out the deceased’s intentions as a consequence of a clerical error, or where there was a failure of the will draftsman to understand the intention of the deceased and follow their instructions.

If you lose out because of the negligence of the will writer then you may also have a professional negligence claim that you can pursue.

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 to 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 the deceased’s estate, specialist legal advice should be sought. There are also important time limits for bringing a claim, which vary depending upon the type of the claim you might have. Whilst this note is a guide only, this is a complex area of law and legal advice should always be sought at the earliest opportunity.

Patrick Jenkins is a Member of the Association of Contentious Trust and Probate Specialists (“ACTAPS”), which is a specialist body for lawyers practicing in contentious trust and probate work. At MacDonald Oates our Private Client team of lawyers also includes members of the Society of Trust and Estate Practitioners (“STEP”) and Solicitors for the Elderly.