Why is there an increase in the number of Wills being challenged?
Without doubt more and more Wills are being challenged. The figures indicate that this is in the region of about 30% to 40% each year. Key issues are the facts that we are an ageing population and the life expectancy of someone born today is 100 years. Older age brings with it the possibility of dementia and debilitating conditions which can affect capacity. Equally the level of debt in the UK means that more and more children are thinking about inheriting as a means of paying off debts long term. Sounds a bit mercenary but it is a fact of life.
More and more we are advising clients to put additional measures in place to avoid challenges to their Wills on death. For example, advising parents to treat all siblings equally irrespective of their children’s differences in wealth.
The most common reasons for challenging a Will centre on issues of capacity. Did the person making the Will understand what they were doing? Did they understand and approve the provisions that they have made? Were they being put under pressure by individual members of their family?
The “Golden Rule”
As a solicitor, if I have any doubts about an individual’s capacity I will consider the “Golden Rule” when preparing a Will. I might ask the person’s GP to confirm that they have the capacity to make a Will. If the changes they wish to make in the Will are significantly different from the last oneI will go through the previous Will just to clarify and document the reasons for the changes. Any meeting with the client will be made in the absence of any family member or friend.
However, even if I adhere to the “Golden Rule” it doesn’t automatically mean that the Will is valid in itself. Equally if I don’t apply the rule it doesn’t follow that the it is invalid. What happens if the solicitor does none of the above? If a solicitor doesn’t follow the basics or consider alternative safeguards then the estate is vulnerable to challenge.
At the end of the day issues relating to capacity are a question of fact and the circumstances surrounding the preparation and execution of the Will.
Letters of Wishes
Frequently solicitors will ask clients to include a letter of wishes with their Wills. This can be really helpful when the new one is very different from that of the previous one. The letter can set out the reasons for the decision that the client has made in distributing his estate.
No matter how well a Will is prepared and executed it can still be open to question. They can be challenged even when there are no grounds for a challenge. This is often done on the basis that, rather than go to court, a financial settlement will be reached.
Documentation documentation documentation
At the end of the day a Will is only as good as the evidence that supports it. If your solicitor doesn’t keep detailed notes on the instructions that were given, refer to capacity and follow the “Golden Rule” where appropriate then a Will can be open to challenge. It is also important to discuss your intentions with your family so that there are no surprises when you die. There is no such thing as a bullet proof Will. You should review it at least every 5 years or when circumstances change significantly. My advice is be fair where possible. However, but there are things you can do to minimise conflict on death.
If you would like to review your existing Will make a Will for the first time please contact me Eilish Adams on 020 3150 2525 or email me at firstname.lastname@example.org