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What steps could be taken to prevent will disputes? We offer some reflections

The Benefit of Hindsight: What Could Have Been Done to Prevent Will Disputes

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We look at some lessons from case law that may help prevent will disputes in the future.

Making a will is an important step for you to take to ensure that you property will be distributed as far as possible according to your wishes when you die. Without an up to date will, property will either be distributed according to a previous will, which might not reflect your wishes, or the intestacy rules. A will dispute arises when a either beneficiary under a will, or someone who was financially dependent on the testator, or an individual who believes the will was not properly made, challenges the will.

There are several ways someone could challenge your will. It is possible to challenge the validity of a will for lack of testamentary capacity, for example. Someone who you support financially when you are alive might claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975, without questioning the validity of the will itself. Examples of what you as a Testator (the person making the will) could have done to prevent will disputes arising out of lack of testamentary capacity and the Inheritance Act are considered in this blog.

Lack of Testamentary Capacity and The Golden Rule

‘Testamentary capacity’ is necessary to create a valid will. This term refers to the level of understanding that the Testator has of the will and its consequences. The Golden Rule is the general principle that a solicitor, who is preparing a will and has reason to suspect that the testator might not have testamentary capacity, should arrange a medical examination of the testator to ensure that they have capacity. The Golden Rule is especially relevant where the testator is showing symptoms of dementia.

In the case of Key v Key [2010] EWHC 408 (Ch), a solicitor made a will for an 89 year old man whose wife had passed away less than a week before. The solicitor failed to follow the Golden Rule, and the will was successfully challenged for lack of testamentary capacity. In the judgement, the judge stated:

“Mr Cadge’s failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client’s children have subsequently fallen.”

When solicitors follow the Golden Rule, the resulting medical evidence that the testator had testamentary capacity is very likely to successfully defend against a will dispute for lack of testamentary capacity. Failure to adhere to the Golden Rule can lead to a will dispute, and as in the case of Key v Key, cause a great deal of family strain.

Inheritance Act and Codicils could prevent will disputes

In the case of Roberts & Anor v Fresco [2017] EWHC 283 (Ch), a woman whose estate was worth £16 million passed away, without leaving reasonable financial provision for her husband. Her estate was left mostly to her only daughter. The husband unfortunately passed away before he could make an Inheritance Act claim, and only £320,000 was left under his will to his daughter (the woman’s step daughter).

A codicil is a document that officially changes the provisions of a will. Instead of making an entirely new will, it is possible for a testator to make a codicil to adapt the way in which their estate will be divided. Like a will, a codicil must be signed and witnessed. Codicils are common in situations where a person gets married or has a child, for example, because this alters the set of people who are dependent on them financially. The case of Roberts & Anor v Fresco is an example of an estate that would potentially have been distributed very differently if the testatrix had changed her will via codicil when she married her husband.

Conclusions

Unfortunately, testators can fail to consider methods of establishing testamentary capacity, or keeping updated codicils to ensure that their will accurately reflects their changing wishes. It is important for will disputes claimants to be aware of the problems with a will when it was made, or changes in the testators’ circumstances during their lifetime, to help determine whether a will dispute has the potential to succeed.

For expert advice on your will dispute, get in touch! We offer a free claim assessment, and can usually handle claims on a ‘no win no fee‘ basis.

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