Most people assume that their Will is the final say over what happens to their property and estate. Unfortunately, this is not always the case. Here, we look at two ways in which your wishes can be overruled, and what you can do to avoid this happening.
Many couples make Mirror Wills which typically leave everything to their partner, then their children and perhaps then the grandchildren. But in many cases, this is not how their estate is ultimately distributed. Common problems that can happen if you make a Mirror Wills include:
- After your death, your partner needs care. The Local Authority can take all of their assets and your assets towards their care fees, leaving them with just £14,250. This measly amount can easily be used up for bills and day-to-day expenses, leaving nothing to pass on to the children or grandchildren.
- After your death, your partner remarries. They must make a new Will and they leave everything to their new partner. If they die first, their partner inherits everything, leaving nothing to the children of your marriage.
- Your child inherits – but they get into financial trouble. HMRC or their creditors take all of their inheritance, leaving nothing to pass on to the grandchildren.
- Your child inherits – but then divorces. Their ex partner takes half of their inheritance.
All of the above problems are not only common – but also avoidable. If you and your partner own your property as Tenants in Common rather than Joint Tenants, you are free to leave your share of the property to who you choose (otherwise, it is automatically inherited by your partner). This allows you the freedom to create a trust, leaving the property to your partner for life and then your children/grandchildren. The benefit of using a trust is that your partner does not own your share of the property. If they should need care, the Local Authority cannot take your share of the inheritance to pay for their care fees. Similarly a trust will ensure that your assets do not pass sideways out of the family, if your partner remarries – and it can be used to ensure your hard-earned assets don’t go to your children’s creditors or an ex partner.
Claims from “Dependents”
If you don’t include someone in your Will who was a dependent, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows for wills to be varied in some circumstances. The number of Wills that have been contested has grown significantly in recent years.
A number of people are entitled to make a claim under the Act. These include:
- your spouse/civil partner;
- a former spouse/civil partner if they have not remarried/entered into another civil partnership;
- a cohabitee if they lived with you for at least two years prior to your death;
- your child (including an adult child);
- someone who you treated as your child (for example, adopted, fostered or step children); or
- someone who you “maintained”.
Claims must be made within six months from the grant of representation or probate. This deadline will only be extended in very exceptional circumstances.
In a recent case – Ilott v Mitson – a mother, Melita Jackson, left the bulk of her estate to three charities. She not only excluded her estranged daughter from her Will but went so far as to write an accompanying letter of wishes which stated “If my daughter should bring a claim against my estate, I instruct my executors to defend such a claim as I can see no reason why my daughter should benefit in any way from my estate”.
The daughter, Heather Ilot, successfully challenged the Will and was awarded £164,000 – enough to buy her Housing Association property without losing her means tested benefits. However, the three charities – Blue Cross, the RSPB and the RSPCA – have been granted permission by the Supreme Court to appeal against the decision.
The appeal will give clarification on the extent to which a person’s last wishes can be set aside by courts. Certainly, past cases have shown that you cannot leave a dependent destitute – but the case of Ilott v Mitson was different in that the mother and daughter had practically no contact over a 26 year period (although the daughter had attempted reconciliation).
So how can you avoid your own Will being challenged? There is certainly no way to guarantee that a dependent will not bring a claim, but there are certain steps you can take to minimise the likelihood that the Courts will intervene:
- DO NOT make the Will yourself without first taking legal advice. There are plenty of reasons to challenge a Will besides lack of provision for dependents. These include lack of testamentary capacity, fraud, forgery, undue influence, not having sufficient and appropriate witnesses and challenges to the Will’s provisions. Remember, you won’t be around to confirm your Will’s authenticity or provide clarification on what you really meant – so make sure you use a lawyer to set out your wishes clearly and to ensure that the Will is validly executed.
- Consider whether you should really leave a dependent with nothing at all – passing on inheritance to your family provides financial security and the Courts have some respect for this moral obligation. Writing a dependent out of your Will completely leaves your Will open to challenge – although whether the challenge is successful will depend on the size of your estate together with the dependent’s needs and resources.
- If you are concerned that a dependent may squander the money you have left them, consider using a trust – but be aware that this can still be challenged if it does not adequately provide for someone who is dependent on you. For example, in one case a husband left his wife just £8,000 together with rights to live in the family home for life. His son from a previous marriage stood to inherit everything after her death. The family home needed £30,000 of repairs and it was likely she would not have been able to continue living there. The wife was completely dependent on the husband during his lifetime and clearly his legacy did not adequately provide for her. The Court awarded her ownership of half of the property, a right to stay in the home for life and her husband’s residuary estate, worth around £28,000.
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