We all know that it is important to write a Will, but so often getting the paperwork in place is put to one side – perhaps because it feels like a scary process, or too much of a time investment. Unfortunately, it is all too common for people to delay the creation of their Will to the point where they become too unwell to clearly communicate their wishes, and this can lead to what we would call a ‘contentious Will’.
Imagine this situation.
An elderly person lies ill in a hospital bed. They have no Will. A close relative (perhaps a child) has been caring for them for some years and feels they know them and their wishes well – perhaps they feel they have earnt the right or deserve to inherit the Estate. They create a Will which makes them the beneficiary of the majority of the Estate. In fact the child has siblings, none of whom are aware of the Will being signed. The person dies and the siblings are shocked to find that they have been left nothing, despite being on apparently friendly terms.
This may seem like a fictional situation, but it does happen – surprisingly often.
What can the siblings do about the fact that they have been disinherited? Possibly a number of things. They may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This allows close family and dependents to challenge a Will to ensure that they receive a reasonable provision – in other words a reasonable inheritance from the deceased person’s Estate. But there may also be other options.
In the case of Turner vs. Phythian, a widow (Iris) left her entire Estate to a friend Pamela and Pamela’s husband Richard. Iris did this despite having a large family many of whom where close relatives. Richard actually wrote the Will for Iris which appointed him as the person tasked with administering her estate (the Executor). Richard and Pamela claimed that Iris had asked them to write the Will as she had been friends with Pamela for many years, and the couple had grown even closer to Iris after the death of her husband.
In this case Iris’ niece Lynda challenged the Will on the basis of three key points;
- The Will was not properly executed
- Iris lacked the mental capacity to make the Will
- Iris did not know or approve of the contents of the Will
It’s important to understand that any of these points could be enough to overturn a Will, and in the case of Turner vs. Phythian the judge found that this Will was not valid – Richard’s claim on Iris’ Estate was dismissed and the inheritance went to the family of Iris’ twin brother.
Could your Will be set aside?
You might not be surprised to hear that we think Wills should be prepared and witnessed by an experienced solicitor who will be aware of the issues which can arise. The solicitor must ensure that the person has mental capacity, is not subject to pressure or undue influence, understands the extent of their property and has some idea of the people who might have a legitimate expectation of receiving a share of it. Typically, if an individual makes an unusual Will request, the solicitor should prepare a side letter explaining why the Will has been drafted in a particular way so that the disappointed ‘beneficiaries’ can understand the individual’s reasons.
Where a ‘home-made’ Will has been drafted, the chances of having the Will set aside are potentially greater. Undue influence is a potential ground for setting aside a Will, but one that is often difficult to prove. Medical assessments and records taken of the deceased in their final days will be important in determining whether they lacked mental capacity. Although there may be other evidence suggesting that the deceased did not understand the nature of their Estate and the claims to it.
Finally, it may be that the Will has not been properly executed. The rules on execution are not entirely straightforward and are a potential trap for the unwary. It may even be that the deceased’s signature on the Will is not genuine. This could involve the need to instruct a forensic handwriting expert.
Do you need advice on a contentious Will?
Has someone close to you died and you feel their will is unfair? Or is it time to get your own wishes properly recorded? Contact us today.
