6 Ways to Ensure Your Will Can Not be Contested When You're Dead

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The number of inheritance disputes brought to the high court has increased by 80% over the last ten years. In this blog we explore why and share our top six tips on how to ensure your Will cannot be contested when you're dead ...

Media stories are continuously highlighting court cases where family members are contesting their relatives' Wills. Garry Bushell recently shared some advice about how to ensure your Will rules supreme, in response to the Melita Jackson case. Shortly after this case, The Guardian reported on a similar one, with Sybil Jenazian leaving her fortune to a private school, and family members contesting it. The BBC had previously reported on two families who had gone through the process of contesting their parents' Wills (which we share here with a warning — it does not make comfortable viewing).

 

 

#So, why is there such an increase in the number of people contesting Wills?

Well it could simply be human nature, as pointed out by the lawyer in the BBC footage above: "death and money do strange things to people."

This, though, does not explain the recent rise. The following socio-economic trends may do:

  • The buoyant property market increasing the value of estates makes it difficult for first time buyers to get on the housing ladder without the help of inherited wealth (or gifts provided by family members, often by re-mortgaging against their own properties, or by placing their own properties in a Family Asset Trust or a Protective Property Will Trust and releasing equity from the Trust to help children or grandchildren)
  • The consequences of austerity and associated lack of pay rises increasing the cost of living
  • The decline of the nuclear family
  • The rise in complex family arrangements (owing to remarriages, step families and cohabitation)

With the Halifax's recent report on house prices declining and wide ranging predictions that this trend will continue post Brexit (which may necessitate further austerity measures, since the Government will have to pay to leave the EU somehow), it seems likely, that having got used to the idea of their family property being their inheritance, people's feelings of entitlement will simply be reinforced. It also seems probable then, that the increase in inheritance disputes will continue.

Making a Will that is as legally watertight as possible has never been more important. Knowing what stands up in court when contesting a Will will help.

 

#What reasons can people use to contest your Will?

Typically contestant' claims include:

  • There was "undue influence" placed on the deceased when he or she wrote a Will
  • The deceased did not have the right "mental capacity" ((internal link)) at the time of writing the Will
  • The deceased didn't understand (or approve) the content of the Will
  • The Will was forged
  • There is a mistake in the Will that needs rectifying
  • Close family members have not been given reasonable financial provision, under the Inheritance Act 1975

Let's look at what the person challenging the Will must be able to prove in each of these scenarios, before considering what you can do to ensure your Will is impermeable to such claims.

 

1. Undue influence

In the same way as a person is assumed to be innocent until proven guilty, a Will is presumed to be the absolute final wishes of the deceased, unless undue influence can be proven. So a contester must be able to produce sufficient evidence to satisfy a court of law that actual undue influence did occur. They will need to be able to prove that there is no other reasonable explanation for the deceased person's decisions in the Will than that inappropriate influence was applied. This means proving beyond doubt that the deceased acted against their own volition, and that they were coerced into making a Will that that they did not wish to make.

##2. The deceased did not have the required mental capacity

 

The person challenging the Will must provide enough evidence to support a strong suspicion that the deceased lacked capacity at the time of writing the Will. If they can do this, it becomes the responsibility of those seeking to uphold the Will to prove that the deceased did have capacity.
Here are the tests that the courts will apply to make their decision on whether the person lacked mental capacity:

##Test for wills pre-1 April 2007

Usually the test which is applied is in Banks v Goodfellow 1870, which states that the testator must:

  • Understand the nature of making a Will and its effect
  • Understand the extent of his/her property
  • Be able to comprehend and appreciate the claims to which he/she ought to give effect
  • Have no disorder of the mind which 'shall poison his affections, pervert his sense of right, or his Will in disposing of his property'

##Test for wills made after 1 April 2007

Capacity will be considered in relation to Sections 1 to 3 of the Mental Capacity Act 2005. It will be presumed that the person has capacity, unless proven otherwise. A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.

The medical records of the deceased and the opinion of a suitably qualified medical expert are crucial in such cases.

 

3. The deceased did not properly understand and approve the content of the Will

Even if the contester cannot prove lack of capacity, if s/he can arouse enough suspicion that the deceased did not properly understand, or did not approve the Will, it becomes the responsibility of those seeking to uphold the Will to prove that the deceased fully understood how it operated and approved its contents.
Typical examples of suspicious circumstances include where the deceased was:

  • Hard of hearing, or had a speech impediment
  • Visually impaired
  • Of low literacy level
  • Frail, unwell or otherwise vulnerable (and the Will is particularly complex or unusual)
  • Suspected to have not actually signed the Will themselves

 

4. The Will has been forged

If it can be proved that a Will has been forged, it will be invalid. Typically lawyers obtain the opinion of a handwriting expert as to whether the testator's signature/handwriting is genuine. The expert will want to see a considerable number of original samples of the deceased's writing and signatures. Unless the expert produces a conclusive report, it is unlikely that a claim would succeed.

Witnesses to the Will may also be required to give a sworn statement verifying that the testator signed it without undue influence from others.

 

5. There is a mistake in the Will that needs to be rectified

Many contesters succeed in their claims by proving that a Will does not reflect the wishes of the deceased simply because of a clerical error, or by showing that there is an alternative interpretation of the deceased's intentions.

If either scenario can be proved, the court will rectify the Will to give effect to the true intentions of the deceased. A claim of this nature must be issued within six months of a grant of probate being issued.

##6. Close family members have not been given reasonable financial provision, under the Inheritance Act 1975

The Inheritance Act of 1975 makes further financial provision for close family members (and those that were treated as children — including adults — even if not the deceased biological child, or the person was not officially fostered or adopted by the deceased) who have not inherited as a result of intestacy (where there is no Will); been left out of a Will entirely; or been left as much as they need.

 

So, what can you do to ensure your Will cannot be contested when you are dead?

 

Given that it's Dying Matters Awareness Week and their hashtag #WhatCanYouDo is massively raising awareness of the need to talk about death while you are still alive, it is perhaps the ideal time to take the steps necessary to ensure that you and your loved ones write a Will, or update their Will, to ensure their wishes cannot be challenged.

##Here are six immediate actions our estate planners recommend ...

1. You can protect a Will against claims of undue influence by ensuring that everyone who needs to be present when discussing elderly or ill people's Wills and wishes are present.

2. You can protect a Will against claims of "lack of mental capacity" by encouraging older people and people who are terminally ill to make a Will (or update a Will) now, before it can be claimed that they lacked capacity when writing their Will.

3. You can protect a Will against claims that the person who signed it did not understand (or approve) it by getting an expert Will writer to write, or to check, the Will (some online Will writing companies offer a Will checking service by expert Will writers for as little as £35).

4. You can protect against claims that The Will was forged by using the services of a solicitor or an online Will writing template provided by an organisation that is regulated.

5. You can protect a Will against claims that there is a mistake in the Will that needs rectifying by paying extreme attention to detail when writing a Will or signing a Will. Again, an affordable way to double check for potential errors is to use an online Will-writing service that provides legal checks by expert Will writers.

6. You can protect a Will against claims that close family members have not been given reasonable financial provision, under the Inheritance Act 1975 by leaving a Letter of Intent to explain why you have left people out of your Will, or perhaps not left them as much as they may feel entitled to.

We'll leave the closing words to BBC Breakfast's Graham Satchell:

"Experts say that going to court should be a last resort. That we need to make better Wills. That we need to talk more about inheritance..."

As mentioned previously, the fact that it's Dying Matters Awareness Week may make it easier to do so this week. So, why not bring the elephant into the room? Here are some ideas about how to get the conversation started...

Good luck!

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