How to avoid a contested will

Longhurst - Tax Planning

Death of a loved one

The death of a loved one is a difficult time for any family.

It’s sometimes made more difficult when a will is contested, resulting in family disputes and bad feelings that can last for a lifetime.

Some new research has found that the intention to dispute the terms of a will are more widespread than we originally thought.

Nearly a quarter of people would seek to dispute the wishes of their loved one, going to court to challenge bequests made in their will.

This means more than 12 million people in the UK could seek to contest a will, if they disagreed with how the estate was being divided up between beneficiaries.

Common reasons

The research among family law professionals, which comes from Direct Line Life Insurance, found the most common reason for contesting a will in the UK is on the grounds of ‘undue influence’.

This takes place where the deceased is thought to have been forced to sign their will or they had unreasonable pressure placed on them.

‘Testamentary capacity’ is one of several grounds for contesting a will.

For a person to make a valid will they must be of sound mind. In practical terms, this means they need to understand they are making a will and the effect of that will.

They also need to know the nature and value of their estate, understand the consequences of including (or excluding) certain people from their will, and not be experiencing any ‘disorder of mind’ which could influence their views.

Valid execution

Wills can also be contested due to lack of valid execution.

The valid execution of a will includes it being signed by the testator (the person making the will) or signed by someone else in their presence, who has been directed to do so by the testator.

The testator must intend for their signature to give effect to the will. To be validly executed, the will must be signed in the presence of two witnesses.

The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

Knowledge

Other grounds for contesting a will are lack of knowledge and approval, fraudulent wills and forged wills, and rectification and construction claims.

The legal experts questioned in the survey for Direct Line Life Insurance explained that contesting a will on the grounds of undue influence tend to be the least successful petitions in court.

This is because the burden of proof is high, falling on the person challenging the will to prove the undue influence took place.

The most successful ground for contesting a will in court is ‘lack of knowledge and approval’.

The third most successful grounds are for ‘rectification and construction’ claims; these take place if a clerical error was made in the drafting of the will or the person drafting it failed to reflect the intentions of the testator.

Data

Looking at figures supplied by HM Courts and Tribunals service, Direct Line found that the number of disputes regarding applications for probate rose by around 6% last year.

Applicants were attempting to stop probate applications “entering a caveat” costing £20 each, which means we’re spending a collective £160,000 a year on starting this process. This is the cost before legal fees are considered.

Back in 2018, there were 8,159 caveats registered to block a grant of probate.

Jane Morgan, Business Manager at Direct Line Life Insurance, said:

“While our research reveals people are increasingly contesting wills, everyone has the right to choose how they’d like to distribute their assets, even if it seems unusual or excludes even the closest family members.

“People can be surprised and hurt by the contents of a will, so people may wish to discuss with beneficiaries and those that might think they would inherit, how they plan to distribute their assets.

“Those who do wish to leave an additional provision beyond the assets in their estate should consider investing in a life insurance policy, as it can offer additional financial support for loved ones when someone passes away.”

Summary

Clearly the best way to avoid a contested will, or at least a successfully contested will, is to ensure the will is drafted and executed properly in the first place.

We would also encourage our clients to discuss their plans for inheritance with family members, so there are no nasty surprises at a later stage.

Being upfront about your intentions is especially important in circumstances where one sibling is due to inherit more than another, or the distribution of wealth could be viewed by one or more parties as ‘unfair’.

There’s a well established principle in England and Wales known as “testamentary freedom”, which means we are all free to leave the value of our estates to whomever we wish.

This testamentary freedom does however need to be balanced with sensible measures to prevent any future family disputes. It’s good to talk.