Around half of the UK fails to write a will, assuming that their assets will pass to a spouse, partner or children automatically. Problems often arise when it comes to blended families, multiple marriages and half-siblings, as well as couples who live together without a formal partnership because the terms ‘common-law spouses’ or ‘next of kin’ have no legal standing.
Those who do write wills often worry that the will could be challenged on their death and their estate distributed otherwise than in accordance with their stated wishes and this concern may have increased because of a number of recent cases reported in the press where wills have been challenged.
Can you successfully challenge?
The most common grounds for challenge in recent times have been challenges to the mental capacity of the person who made the will and also challenges under the Inheritance (Provision for Family and Dependents) Act 1975 (Inheritance Act) to the proposed distribution of the estate.
The test for mental capacity is well established and as more and more people are suffering from illnesses like Alzheimer’s and dementia, the issue of mental capacity is increasingly relevant. For people concerned that their will could be challenged, it may be appropriate to have a medical practitioner witness the will to evidence that in their opinion the person making the will did have capacity at the relevant time.
Inheritance Act claims
Claims under the Inheritance Act challenge the distribution of assets and are available both where there is a will or where there is no will. Certain categories of person have the right to apply to the court for an order against the estate of a deceased person where the disposition of the deceased’s estate fails to make reasonable financial provision for him/her.
In the much written about case of Ilot v Mitson a mother left her £486,000 estate to charity rather than to her estranged daughter, the Supreme Court ultimately upheld the court of first instance’s decision to award the daughter £50,000. A similar approach has been taken by the court in a number of recent cases suggesting that the court is reluctant to interfere with the wishes contained in a will.
If you have concerns that someone might bring a claim, you should take advice at the time of making your will from a solicitor and explain your wishes to those in your family group to try to minimise the risk of a later challenge.
At Muckle LLP we provide commercial advice to people in business on wills, trusts and inheritance issues. We will work with your existing professional advisers in accountancy, tax and financial services so that you receive the best all round advice.