There has been an increase in the number of Wills being disputed by family members. Why is this happening and what can you do to try to ensure your assets to go where you want them to?
A death in the family can either bring a family closer together or tear it apart.
English law allows testators (people who make a Will) to make a Will leaving their worldly goods to whomever they chose, whether this be family members, friends or a charity.
Over the last couple of years, there has been a rise in the number of claims being brought by disappointed family members under the Inheritance (Provision for Family and Dependents) Act 1975.
This Act enables certain categories of people to make a claim against an estate on the basis that the deceased’s Will (or the intestacy rules if the deceased died without making a Will) fails to make reasonable financial provision for them.
There are several reasons behind this increase:
Illot v Mitson
First, in March 2017 the Supreme Court handed down its high profile judgement in Illot v Mitson. This case was the subject of many column inches in the national press.
It was a case about a mother and daughter who had been estranged for 26 years. When the mother died, she left her estate to three animal charities and nothing to her daughter. Her daughter brought a claim under the Act, arguing that the Will failed to make reasonable financial provision for her maintenance.
Concept of maintenance
Claims under the Act by non-spouses revolve around this concept of maintenance. Broadly speaking, maintenance means payments to meet the claimant’s recurring daily living expenses. In considering a claim, the Judge must consider and regard the claimant’s financial needs, as well as those of the beneficiaries.
Contrary to popular belief, the Act is not designed to hand out windfalls or to undo what a disappointed child may perceive as a grave injustice of being left out.
Despite how it was widely reported in the press, Illot v Mitson did not really create new law – instead it applied the Act to the very specific facts of that case.
The claimant and her husband had a minimal income and were dependent on state benefits. They had five children. They resided in a housing association property. Because her financial position was so dire, her claim succeeded. Had she been financially independent, she almost certainly would not have done so.
While Illot v Mitson had not set the precedent that was widely reported in the press, what it has done is raise public awareness of the existence of the Act. This in turn has led more people seeking legal advice and an increase in the number of such claims being issued.
Secondly, we now live in a society where modern families are more complex. Second marriages are increasingly common, which creates a tension between the new spouse, the testator’s children from their first marriage and the testator’s stepchildren.
The Act enables not only children to make a claim but also spouses, civil partners, co-habitees, people treated as a child of the family and any other person who was being maintained by the deceased. Ultimately it is for the testator to do whatever they like with their estate, but careful drafting is needed to address those tensions and being mindful of a potential challenge under the Act.
House price rises
In addition, property prices have increased exponentially over the last 20 years, meaning that even a modest house is now worth a considerable amount of money. This can create certain expectations within families of what people are likely to receive.
When there are sizeable assets at stake, people will invest money to pursue a claim in the hope of receiving a bigger share of the estate. Claims under the Act necessarily come at a difficult time, following the loss of a loved one, and the stress and costs of litigation at this vulnerable point can lead to settlements – even of cases without enough merit.
Preparing your own Will (DIY Will)
Furthermore, the proliferation of the internet and the temptation to prepare your own Will using an online toolkit without the benefit of a legal professional can also lead to a testator’s true intentions not being conveyed. Again, this can spark dispute if someone has been told one thing, but the actual Will does not achieve that end.
Finally, there is the human factor. Many probate disputes are about much more than dividing up the financial assets. A death can cause all manner of historically held grievances within a family to be aired, which entrenches positions and further increases the likelihood of a claim being made.
Minimising the risk of Will disputes
So, what can a testator do to try and minimise the risk of their estate being fought over by family after they have gone? Having difficult conversations to manage expectations is a good starting point – if someone knows that they will not be inheriting a significant sum and the reasons for this, they are less likely to contest this decision than if this later comes as a nasty surprise.
If that is a conversation that cannot be had, the testator can explain the position in a letter of wishes. This document is not legally binding but gives the testator the opportunity to speak from beyond the grave and explain the reasoning behind their decisions. Such a letter may make a disappointed family member think twice before challenging a Will. Using a professional Will writer to write your Will helps avoid undesired future outcomes and helps protect against any potential disputes on your assets and estate.