How to minimise a dispute over your Will – 5 action points to consider
COVID-19 has resulted in some law firms reporting up to a 300% increase in new enquiries in the last month to get a Will drafted. The urgency among the British public to make a Will is understandable in these current circumstances. However, all too often, our lawyers are instructed to assist in resolving disputes relating to Wills. Therefore, we wanted to take this opportunity to set out five common areas of disputes relating to Wills, we also set out suggestions to help avoid such disputes from occurring.
- Undue Influence on the person writing the Will
A person making a Will (known as a “the testator”) must be free to draft the Will to reflect their wishes. Unfortunately, all too often we see cases where individuals have been accused of exerting undue force or pressure to encourage the testator to draft the Will in terms which are more favourable to one party over others.
Suggestion: If you are in the process of drafting a Will, take care to ensure it truly represents your wishes and desires. No one should be applying any undue influence on you during this process.
- Reasonable Financial Provision has not been made for an individual
The Court have the power to re-write the terms of the Will pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. This situation commonly occurs, for example, where an individual is a dependant on the deceased and has been left out of the Will. Where a party has been left out of a Will, they may commence proceedings under the 1975 Act and request the Court to make an Order that the assets are redistributed to ensure there is a fair outcome.
Suggestion: Consider whether you have left out any immediate family members or dependants from your Will. If so, consider having a frank and transparent conversation with anyone you intend to leave out and ensure your intentions are carefully noted. Before or at the time of writing a Will, you could also consider writing a letter of wishes which would provide better insight as to why the Will has been written in its current terms. Whilst this may be difficult, it could assist in preventing disputes later down the line.
- The Testator lacked the mental capacity
A common dispute which arises after the testator has died is whether they really had the mental capacity to make the Will. All too often we receive complaints from interested parties who allege that the testator could not have had the mental capacity to draft the Will and therefore the terms of the Will cannot possibly reflect the true wishes of the testator.
Suggestion: Shortly before writing a Will, it is often a good idea to ask your GP or health professional to provide a brief opinion as to your mental capacity and well-being. This medical opinion should be documented and kept safely with your Will. This will reduce the chances of a dispute regarding your mental capacity at the time of making your Will.
- The Will is unfair
Just because a Will is unfair does not automatically mean there is a legal remedy. In the first instance an interested party should see whether any of the above claims can be made out. To obtain clarity of the circumstances surrounding the drafting of the Will, an interested party can send a Larke v Nugus letter to the solicitor who drafted the Will. This letter is essentially a letter of request for an explanation as to the circumstances surrounding a Will being made.
Suggestion: Before or at the time of writing a Will, you should consider also writing a letter of wishes which would provide better insight as to why the Will has been written in its current terms. This would be particularly important where a party who may have expected to have been a beneficiary under the Will has been left out.
- The Executors are failing to perform their task of executing the Will
The role of the executor of a Will is extremely important as they will be responsible for fairly administering the estate. Disputes often arise between executors who are also beneficiaries under the Will. If an executor is acting inappropriately, it may be possible for an application to be made at the Court to remove and replace the executor.
Suggestion: Think carefully about who you appoint as executors of your Will. Is that individual trustworthy, responsible and likely to cooperate with other executors or beneficiaries? You could also consider appointing a professional or a solicitor to be the executor of your Will, to avoid disputes among beneficiaries and to ensure the process is taken care of appropriately.
Please do not hesitate to contact our team if you have a Will, require advice regarding the drafting of a Will, if you are an executor, if you are a beneficiary or an interested party who would like advice regarding a potential dispute about a Will. We currently offer free 30-minute consultations where you can discuss and one of our Solicitors can answer any queries you may have.
