A recent county court case reported in the Telegraph highlights the importance of seeking professional advice when preparing a Will, and of keeping your Will up to date.
The case involved a claim against the estate of the late Norma Hall by Raymond Brader, a man 20 years her junior.
In her 2001 Will, Mrs Hall left two thirds of her £280,000 estate which included a £200,000 bungalow to her daughter Janette Epton and one third to her grandaughter Lisa Epton.
Mr Brader claimed for reasonable financial provision under the Inheritance Act and Judge Rawlings in the Birmingham County Court awarded him the right to live in Mrs Hall’s property for life without paying rent. Although the daughter and granddaughter will still inherit ownership of Mrs Hall’s property and the remaining £80,000 in assets, they will not be able to use or sell the property until Mr Brader’s death.
In addition, the family report that the Court ordered that the family should pay 75 per cent of Mr Brader’s legal costs on top of their own. The family have estimated these to be in the region of £80,000.*
* These case circumstances were reported in the Telegraph on 1st October 2018. We make no representations as to their accuracy.
Claims that can be made against an estate
Claims against estates are becoming increasingly common. With rising property prices, the value of estates are typically higher than ever, making a challenge more worthwhile. People are living longer, and parents are viewing their adult children as financially independent and having less of a need of inheritance. Blended families where there are children from different relationships can also be a reason for disputes.
There are various grounds for bringing a challenge. These include, for example, that the Will was not validly executed, the Deceased did not have the required mental capacity when they made the Will, or that someone unduly influenced the Deceased when the Will was made.
Other types of claim include:
- A claim that the Deceased promised something and then didn’t include this in their Will.
- A claim that a deathbed gift was made.
- A claim that the Deceased owed money.
An alternative route is to bring a claim for reasonable financial provision under the Inheritance (Provision for Families and Dependants) Act 1975. This type of claim can be made whether or not a Will has been made.
How to avoid a claim against your estate
With an increase in this type of litigation, what can be done to avoid such a claim being made against your own estate?
1. Make a Will
An Inheritance Act claim can be brought whether or not there is a Will. However, if there IS a Will, the Deceased’s wishes will be taken into account, should the claim go to court.
2. Use a professional to draw up your Will
A Will prepared by a qualified, experienced lawyer is far less likely to be challenged than a DIY Will or a Will prepared by a lay person. Why?
- It will be written in appropriate, clear legal language by someone who knows the pitfalls of using the wrong words and phrases.
- It will include all the appropriate wording required to give effect to your wishes.
- The lawyer will make a detailed record of your instructions and your reasons for your decisions.
- The lawyer will advise you if any of your wishes could possibly result in a challenge against your estate.
- The lawyer can advise on ways to mitigate a challenge such as particular wording to include and the possibility of leaving a small gift rather than disinheriting outright.
3. Prepare a letter of wishes
A letter of wishes can help explain further why you have made particular decisions. It should be stored with your Will in a sealed envelope. It is important to draft the letter carefully and objectively. In past cases, the Court has viewed such letters negatively where these contain inaccuracies and spiteful comments.
4. Keep your Will updated
It is vital that you keep your Will up to date and ensure it reflects your current circumstances. Wills should be reviewed every three years or sooner if your circumstances change. Leaving your Will unchanged for many years leaves it more open to challenge on your death.
If you begin cohabiting with a partner, consider whether any provision should be made for them in your Will. It is also advisable to make a cohabitation agreement. This sets out who is responsible for the bills, any debts, share of the equity in the property and ﬁnances. Such agreements ensure you are both on the same page and avoid disputes in the future.
You should also update your Will to account for other life events, such as separation, divorce or the birth of a new child in the family.
Order your free information pack
Your free pack on making a Will provides vital information including:
- Care fees: How to ensure nearly all of your hard-earned assets are not swallowed by care cost fees.
- Why you must make a Lasting Power of Attorney.
- How Grandparent Wills can ensure your estate is inherited by who you choose.
- Why, if you have a partner, you should never make a “mirror will“.
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