Under the Inheritance Act, a disputed will must be brought to court within six months of the date of the grant of probate. In some limited circumstances, it is possible to make a claim after this under section 4 of the Inheritance Act, and the court has total discretion in allowing an application.
There are steps though that you can take to protect your estate from potential claims.
Have a Will in place
This is the only way you can document your wishes. Without a valid Will in place, your assets will be distributed according to the rules of intestacy. It does not matter if you have made verbal promises to loved ones; they will not take effect unless stated within your will. Once you have a will you must keep it up to date. Review it on a regular basis as finances and family situations can change. A will can quickly become out of date and no longer reflect your wishes. This leads to disappointment for family members or dependents resulting in a potentially contested will.
Although the number of disputes is on the rise, recent case law has held that it is “a very strong thing” to find a will to be invalid where it has been prepared by an independent solicitor. If the will is homemade a family member may have assisted the individual in the preparation of the Will resulting in an undue influence claim. There is also no one to assess whether the individual has the capacity to create the Will.
To avoid your Will being contested seek professional advice
If your family circumstances or wishes would suggest that a dispute is likely, it is important to seek professional advice when making your Will. A dispute may be likely if you are excluding any dependents or gifting them a lesser share than they may be expecting. A solicitor will be able to assess your capacity, ensure there hasn’t been any undue influence, and have a full and complete file including the reasoning behind the contents of your Will. Subsequently, the solicitors’ file may be required as evidence in the event of a dispute.
Although the number of disputes is on the rise, recent case law has held that it is “a very strong thing” to find a Will to be invalid where it has been prepared by an independent solicitor. If the Will is homemade a family member may have assisted the individual in the preparation of the Will resulting in an undue influence claim. There is also no one to assess whether the individual has the capacity to create the WEill.
Leave a letter explaining why
If an individual is being excluded from your Will, write a letter explaining why you are doing that. You should set out why you are making greater provision for one party over another or, excluding a party altogether. This letter may later be required as evidence.
Talk to your family during your lifetime
If you can make your wishes to your family members clear during your lifetime, then this is advisable. If the first time a family member finds out that they have been disinherited is after death, they will be unable to ask or understand why. This may lead to shock, suspicion, and subsequently, a possibility for your Will to be contested.
Reasonable financial provision
Even if you have taken all the above steps and the will is clearly valid, a beneficiary could still make a claim for reasonable financial provision from your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
If you think a beneficiary is likely to claim against your estate regardless of the steps you have taken, it may be sensible to consider leaving them something in your Will. This option may be less costly than the costs of an estate dispute.
Please contact the Wills & Probate team to discuss any of the above matters.