Contesting a will: how to nail down your wishes

 14 February 2022
Contesting a will: how to nail down your wishes

The current/ongoing squeeze on family finances may have a surprising repercussion, with more individuals seeking to contest a will. The usual grounds are that they have been excluded, or do not consider they are being given a fair share of the estate.

 

More wills are being contested

In 2020/21, many law firms saw a major increase in the number of people enquiring about contesting a will. According to an article in Which?

“The law firm JMW Solicitors saw a 111% increase in enquiries about contesting a will compared with the previous six-month period.”

The article suggested that the rise was in part due to unexpected deaths in the pandemic of people who had not updated their will. However, the contested cases had been rising prior to 2019, with possible reasons being:

As we’ve said before, the best way to ensure your will reflects both your wishes and your family dynamics is to update it regularly. By including a will clarity statement, and avoiding excess numbers of codicils, you can make your wishes clear for your executors and your beneficiaries. (Call us to discuss your will writing requirements.)

 

Legal grounds for contesting a will

Any individual contesting a will must have a valid legal reason to do so.

- Lack of mental capacity

A person must be of “sound mind” when they sign their will.

- Lack of knowledge and approval

This means that the person making the will (known as the testator) was unaware of the contents of the will.

- Undue influence

This is when the testator was coerced into writing a will.

- Forgery and fraud

If the testator was tricked into making a will, or somehow deceived in the making of the will, or the will was tampered with.

- Rectification

This is when an error was made in the drafting of the will.

 

Relevant Acts concerning wills

  • Section 9 of the Wills Act 1837

A will is invalid under the terms of the Act, perhaps due to the testator (the person making the will) not signing it, or not having two witnesses.

  • The Inheritance (Provision for Family and Dependants Act) 1975

This is the ‘go to’ Act for many contested claims. The Act applies if someone the deceased was financially responsible for is unfairly excluded .

For more information on the grounds for disputing a will, see The Law Society website.

 

Online wills and disputes

Another article at the Law Society Gazette suggests that:

“The growing popularity of online will writing could lead to a ‘surge’ in contested probate cases down the line.”

The issue seems to be that many people consider their affairs to be “simple” when they are actually the reverse. Simon Cox, co-founder of Funeral Expert Solution consultancy said:

“Our research shows that 65% of consumers who rate their own affairs as “simple” subsequently reveal through questioning that their affairs are in fact “complex”.”

The concern amongst professionals is that due to the number of wills written at home increasing by more than 250% between 2019 and 2020, there will be far more wills contested when the testators pass away in the future.

 

How much does contesting a will cost?

Contesting a will is not cheap. Many cases can run up bills in excess of £10,000 over the course of several months, even without the case going to trial. A court case could push the bill even higher to £100k plus if the case is complex. However, only around 4% of cases go all the way to court.

 

How to avoid your will being contested

Needless to say, you need to take steps when you make a will or change it, as you won’t be around when it might be contested! Here are our top five tips:

Tip 1: Talk to the beneficiaries.

Over 25% of people surveyed by Which? had not discuss their will with any beneficiary. Talking now can shed light on their expectations and perceptions of fairness.

Tip 2: Keep your will up to date.

Circumstances can change very quickly in relationships:

  • Yesterday’s wonderful son in law might be replaced by today’s undesirable new partner.

  • Grandchildren might come along earlier than anticipated.

  • Blended families make lines of inheritance less clear-cut.

  • If you yourself re-marry, you need to make a new will as your old one becomes automatically invalid.

Tip 3: Add a Will Clarity Statement.

This does exactly what it says on the tin, removing ambiguity and making your wishes clear for your executors and beneficiaries. (Panthera Estate Planning offers a Will Clarity statement if we write your will with you, but other will writing companies may not.)

Tip 4: Get your will written by a professional

Wills are an incredibly important document, detailing the division of estates worth hundreds of thousands of pounds. It is worth investing in professional will writing services in ensuring yours is fair, legal and watertight.

Tip 5: Appoint responsible executors

These are the people responsible for executing the terms of your will on your death. First, they need to agree to be an executor - and understand the implications. It is a major job involving sometimes financial calculations, the payment of any Inheritance tax owed, and the securing of probate in order the release funds and property. If you think this would be too much for members of your family, you can appoint a professional executor alongside family members.

 

No will? Make it your No1 priority!

And finally - if you are one of the estimated 44% of homeowners who have not made a will, make it your priority this month. And if you have made a will, tell people where it is in your house, or which solicitors it is stored with.

 

Will writing services from Panthera Estate Planning

If you’d like to make a new will or revise an existing will, contact us. We’ve helped hundreds of people make wills that are legal, and we can help you too.

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During our initial discussion Panthera (Paul) fully explained the Will making process. We were made aware that our assets could be exposed to various risks such as Care Costs. Panthera (Paul) advised on how we could protect these assets by setting up Family Trusts. Having decided to go down this route Panthera (Paul) provided all the legal documentation in a timely manner despite having to work within the constraints of Covid-19 restrictions.

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