Aug 11

Can the wishes in my will be challenged?

Written by Jonathan Mortimer
Head of Dispute Resolution

DDI: 01423 726608
M: 07850 993952
E: jonathan.mortimer@raworths.co.uk

I frequently meet people who are worried that their will can be overturned once they have died.  They are concerned that their will only contains their wishes or suggestions and that their family will pick over their estate once they have gone and agree a different distribution amongst themselves.

It is certainly the case that the law provides for possible injustice and can set aside a will if it is unfair.  The most frequent circumstances are:

1. The will was drafted negligently and does not reflect the wishes or intentions of the deceased.
2. There has been undue influence by a family member to force the deceased to make the will.
3. The deceased lacked mental capacity to make or sign the will.
4. A homemade will has been drafted incorrectly or improperly executed.
5. There are circumstances in which the will does not make reasonable financial provision for the deceased’s dependants.

The latter example is the most common.  The Inheritance (Provision for Family and Dependants) Act 1975 allows a Court to adjust the distribution of your estate to ensure that provision is made for those who depend upon you.  Many people forget to change a will to reflect a new relationship or a change of circumstances.  However, the law is there to help in those circumstances.

Consequently, the chances of your family being able to avoid your wishes are small, particularly if you have had the benefit of legal advice at the time you made your will and reviewed it after any change of circumstances.

However, sometimes I deal with family members following a death in which those anticipating an inheritance feel extremely aggrieved by the provision or lack of it which has been made in the will for them and, at the same time, there is no legal remedy from the list above.

It is usually the situation in which sons and daughters have not been given an equal share of the estate.  For example, a son may say: ‘Why should I get less than my brother just because I have been successful?‘   A daughter may say: ‘Why should I get less than my sister just because I lived some distance away? – it did not mean that I loved my mother any less.’  There may have been very good reasons but the family members concerned feel like the so-called black sheep of the family.

The recommendation must be to discuss your intentions with your family and others in advance of your death so that there is no possible misunderstanding and to ensure that there is a clear explanation of your wishes attached to your will.