Making a Will - I Can Do What I Like With My Assets - True or False? by Eilish Adams - The Law House Family Law Solicitors, London & Peterborough


Making a Will – I Can Do What I Like With My Assets – True or False? by Eilish Adams

By in All Blogs, Wills, Trusts & Probate Category on May 16th, 2016

On the face of it you can leave whatever you like to whoever you like otherwise what would be the point of making a Will. A Will is the last document that speaks for you and if you can’t rely on it why bother? If you have gone through the process of making a Will then it is only right that you make it in the knowledge that your wishes will be carried out or is it?  During your lifetime you can sell, gift or donate all your worldly possessions to whoever without question whether your family agree with you are not. However, when you make a Will what you choose to may not be to the liking of everybody but you are not in a position to explain your decisions. Unlike when you are alive you can support your choices and for the most part cannot be forced to provide for those you do not want to. On death your Will may be challenged by those who, rightly or wrongly, believe they have a right to a share of your estate.

In my experience once the initial period of grief has passed many beneficiaries start to evaluate and question the significance of the gifts(s) that they are to receive under the terms of the Will. If one sibling receives more than another  this can set off a chain of thinking that can sometimes be destructive.  This is particularly the case in combined or blended families, where there are children from an earlier relationship. Many parents and step parents make gifts in their Will based on need and not on perceived “fairness”. This is very common and even though parents love their children equally they will often worry about a child who is less financially stable. Perhaps one child is in a career that will never earn them enough to buy a home. The other children may be in a better position financially long term but it is amazing how on death, where there is unequal benefit, that the emotions override reason. If your plan is to make unequal distributions then it is best to discuss what your intentions earlier with your family or beneficiaries so that on death there are no big surprises and no hard feelings. So how can a Will be challenged?

One of the reasons a child or family member could challenge your Will is because they believe you lacked the required mental capacity. The claim is you did not know what you were doing when you made your Will. Another common reason for them to challenge your Will is because you have not made provision for them or the provision you have made is inadequate. If someone is directly or indirectly dependent on you financially, the court might take the view that you should have made some provision or a greater provision than you already have. If your child/children feel that you were “unfair” they can seek the help of the Court. Ultimately the court could make better provision for them. Applications to the court can be costly and time consuming . Also, they could damage family relationships in the long term. Awards by the court usually include the following:

  1.  A financial award, this is limited to providing for the maintenance of the person making the claim.
  2. No award . If the person bringing the financial claim is already financially secure ithe court is unlikely to make additional provisions for them.

When coming to a decision the court will consider a number of factors such as the size of your estate and the financial circumstances of all beneficiaries. Making a legal challenge does not guarantee success and it is at the discretion of the court whether your Will is altered or not.

At the end of the day the you are entitled to leave your estate to whomever you want.  Sadly there is no guarantee that your Will is followed word for word. Despite the fact that there is no guarantee of success this has not stopped unhappy beneficiaries making claims against an estate. The number of claims increases year on year. To ensure that your wishes are carried out it is always good to take legal advice when making your Will. In doing so, you can reduce the likelihood of others claiming against your estate.

If you want expert advice and assistance on how to distribute your possessions in your Will and reduce the risks of a costly legal challenge, please contact me, Eilish Adams, at The Law House  Solicitors on 020 8899 6620 Alternatively, please email me at eadams@thelawhouse.com