How to prevent a dispute over your last will and testament
Written by Cindy-Marie Leicester on March 25, 2016.
Figures from the Ministry of Justice reveal that there has been a rapid escalation in the number of UK wills being contested at the High Court. The number of probate cases heard in 2014 was 178, almost double that for 2013 (97). These figures may seem low but are indicative of a much more widespread trend because only a tiny percentage of cases make it all the way to the High Court, the vast majority being settled earlier in the process.
The reasons for this upsurge are twofold: rising property prices and an increase in the number of second marriages. The fact that more and more people are having children with different partners has led to an increasing number of complicated family set ups which in turn increases the likelihood of discord between step-parents, stepchildren, half siblings and step-siblings.
The grounds upon which a will can be contested are limited to one or more of the following:
• The will has not been correctly executed
• The testator lacked the necessary mental capacity
• The testator lacked knowledge or approval of the contents of their will
• The testator was subject to undue influence
• The will is forged/fraudulent
Undue influence is a common accusation when a surprisingly large percentage of the legacy is made to a particular beneficiary, if a totally unexpected beneficiary is left a legacy or if unequal amounts are left to siblings. Undue influence means that an individual or individuals undermined the deceased’s decision-making process when their will was executed, thereby rendering it invalid.
In such instances suspicion may well be justified but undue influence must be proved by the challenger and this is extremely difficult to do. An accusation of simple persuasion is not sufficient to bring about a ruling of undue influence. There must be proof that an individual influenced the testator via coercion or excessive pressure to the extent that their free will was completely suppressed. A high court ruling that I read about recently proves this point.
The son of a French diplomat died leaving a legacy worth £630,000. His only daughter expected to receive the lion’s share of this but was only gifted £100,000 with the vast majority of the estate being left to her two aunts. It transpired that the deceased had signed a shop-bought will seven days before his death. The daughter argued that the aunts, who she claimed had never liked her, had unduly influenced her father when he was in severe ill health due to throat cancer. The judge at the trial admitted that there were ‘suspicious circumstances’ surrounding the execution of the shop-bought will and even examples of influence but still ruled that undue influence could not be applied.
Of course after your passing there is nothing you can do if someone contests your will but you can make sure that your last will and testament is laid out as clearly as possible prior to your departure to ensure that the possibility of anyone contesting it is minimised. This will save the loved ones who you want to enjoy your legacy from having to engage in a lengthy and costly dispute.
That is one reason why I would always advise against DIY wills. Sure they are the cheapest option but it is much easier for question marks to be raised over their validity after your death. There is a formal procedure to taking will instruction and signing a will that are required and this is best done with a professional will writer while you are in good health and have full capacity. A professional such as myself will ensure that your will absolutely represents your final wishes and that it is correctly executed. We are obligated to seek a medical opinion if we have any doubts whatsoever with regard to your mental health which means that wills drafted by us are less likely to be challenged.
If you want the peace of mind of knowing that your last wishes will be respected, I’d be happy to help get your affairs in order and now is the time to do it because you never know what is round the corner.
Cindy-Marie Leicester provides will writing services as a third party professional adviser and Infinity Financial Solutions Ltd takes no responsibility for the goods and services provided by any third party to whom clients are referred.
In no event shall Infinity be liable to you, or any third party, for direct, indirect or consequential damages, cost or loss of profits arising from your use of third party referral services. Infinity may receive a referral fee from third party will writers for introductions.