Another day, another Will challenge

Inheritance dispute

Sara Keays, the former personal secretary and lover of Cecil Parkinson, is challenging his Will on her daughter’s behalf. The former Conservative minister died aged 84 in January 2016 after a battle with cancer, leaving nothing to the daughter.

An increase in claims

The inheritance dispute is just one of hundreds of such claims made in recent times. So why are we seeing such an increase in these cases? There are multiple reasons.

First, we are living longer than ever before. Life expectancy for a newborn boy increased to 79.2 in 2013-15, compared with 78.5 in 2009-11, while for newborn girls it rose from 82.5 to 82.9 (Source: ONS). Age is the strongest known risk factor for dementia and while it is possible to develop the condition earlier, the chances of developing dementia increase significantly as we get older. Above the age of 65, a person’s risk of developing Alzheimer’s disease or vascular dementia doubles roughly every 5 years. It is estimated that dementia affects one in 14 people over 65 and one in six over 80 (Source: The Alzheimer’s Society). With an aging population, the possibility that a Will might be challenged on the basis of lack of mental capacity increases.

Secondly, family structures are becoming increasingly complex. In 2013, 29% of divorces were to couples where at least one of the parties had been divorced or widowed previously (Source: ONS). With second and third marriages, together with a rise in cohabitation (from 6.8% in 2002 to 9.5% in 2015 – Source: ONS), there can be a far greater pool of people who may feel they have a claim on a deceased person’s estate.

Other factors that play a role include the rise in property prices (the average in the UK in February 2017 was £217,502, a rise of 5.8% compared to the previous year – Source: UK House Price Index) which makes estates larger and more attractive to claim against; together with more than 20 million people living in poverty, a figure that has doubled since 1983. Inheritance may be the only hope for a whole generation – and if their expectation isn’t met, litigation becomes their only hope.

Whilst the figures may seem small – 97 High Court disputes in 2013 and 164 two years later, this does not represent the true picture. A huge number of claims are settled before going to Court.

69 year old Sara Keays’ case is made on behalf of her daughter Flora Keays, who has significant learning difficulties and requires round the clock care provided by her mother. During his lifetime, Cecil paid regular maintenance for his daughter, reportedly £5,000 a quarter, but these payments stopped when he died. Parkinson’s entire estate was left to his wife Ann and their three daughters Mary, Emma and Joanna. Reports indicate that a life insurance policy was made for Flora, worth around £350,000, but to date this has not been released.

Testamentary freedom

There is a general principle in law that you have the right to leave your estate to whoever you choose.

“The concept of freedom of testamentary expression has been central to English law certainly since the nineteenth century. A testator is entitled to leave his property, if governed by English law, in whatever way he may choose. Similarly, he is entitled to decline to make provision to those who might feel some sort of entitlement to receive from him. He need not make a will at all and can allow for his estate to devolve on intestacy. He is under no obligation to behave fairly, reasonably or explicably.”

Source: Carden, N (Ed) “Freedom of testamentary expression”, Rayden & Jackson on Divorce and Family Matters

This general principle is a starting point, but it is not absolute. The Inheritance (Provision for Family and Dependants) Act 1975 allows those who were financially dependent on a Deceased person to make a claim against their estate if they were not reasonably provided for. In fact, in some cases, the Court has made financial provision even where the Claimant was not financially dependent on the Deceased at all (see Ilott v Mitson, involving an estranged daughter).

There are also a number of grounds on which a Will can be challenged. These include, for example, that the Testator/Testatrix (the person making the Will) did not have mental capacity or was unduly influenced when gifting away their estate.

Why everyone should make a Will

With an increasing number of claims challenging the principles of testamentary freedom, is it even worth making a Will at all – and how can these challenges be avoided?

First, it is always better to have a Will than not to have one. Tax planning is one substantial reason – and another is that a Will is a clear expression of your wishes which the Court will have regard to. In the Ilott case, the Court noted how the Inheritance Act deliberately limits ‘reasonable financial provision’ for any dependent other than a spouse or partner to what is required for maintenance only. This reiterates the significance attached by English law to testamentary freedom.

A further reason is that the rules of intestacy do not work as most people expect and can leave key dependents with nothing. Where there are business assets or properties, the absence of a Will can make managing the estate complex and time consuming.

But perhaps the most important reason to make a Will is the message it sends to those you care about. The absence of a Will simply screams that you didn’t care enough to make adequate provision. The carefully thought out legacies that you make in your Will show those close to you that you have thought about them. A Will is not just a legal document – it is a message to loved ones after your death that can help them better cope with their loss.

How to avoid a challenge to your Will

You can never entirely prevent a challenge to your Will, but there are a number of steps you can take to minimise the likelihood. These include:

  • Don’t make a DIY Will: For two reasons – first, a Court is less likely to interfere with a Will if it has been made by a professional, and second, a Will drafted by a legal professional is more likely to comply with all of the legal formalities for a valid Will and is less likely to contain ambiguous language that could be challenged.
  • Don’t disinherit: If there is someone in your family that you feel is less deserving or might squander the money you have worked so hard for, don’t disinherit them entirely – consider making some provision for them. This might include a smaller gift and/or making them a beneficiary under a discretionary trust or giving them a life interest in property. Again, a professional will be able to advise you on the best way to structure your Will, taking into account other factors such as inheritance tax, keeping money in the family and preserving your share of the wealth so that if your partner needs care after your death, it is not lost to care fees.
  • Make a letter of wishes: A letter of wishes can accompany your Will and explain why you made certain decisions. Despite the wave of inheritance disputes, the Courts still place a huge degree of emphasis on testamentary freedom – as indicated in the Ilott case. In Ilott, the Testatrix made a letter of wishes explaining why she disinherited her daughter and left her estate to charity. Although the daughter was still successful in claiming £50,000 of the £486,000 estate, it is possible she might have secured a far higher settlement if the Deceased’s wishes were not as clear.
  • Consider including a ‘no contest’ clause: A no contest clause, also known as a forfeiture clause, states that a beneficiary will forfeit their inheritance if they challenge the Will. If the beneficiary’s challenge is unsuccessful, they will lose their legacy. This can discourage beneficiaries who are unsatisfied with the size of their legacy from making a claim – however, you should take professional legal advice on whether this would be appropriate for your circumstances. You should also be aware that if the entire Will is challenged and found to be invalid, the no contest clause will be irrelevant.
  • Keep your Will updated: So many people see making a Will as a one-off event but you need to update your Will on any life events – children, marriages, divorces, house moves etc to ensure it still meets your needs. Even in the absence of such events, both the size of your estate and legislation will change. See ‘Do I need to change my Will?‘ for more details.
  • Choose your witnesses carefully: If your Will is challenged, your witnesses may be called upon to give evidence. Choose witnesses who are likely to be still around on your death and likely to be able to give credible evidence.

Call us on 0800 788 0500 or email to make an appointment without any obligation. We are happy to review your Will with you, even if it was made by another firm of solicitors.

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