Where there’s a Will, there’s often a way to undermine it!


This article is going to deal with two very important sides to the issue of inheritance. In the first part, we will take a look at why you need to take legal steps to ensure your will can stand up to any contest, provided that it is fair in the first place. Then we’ll take a look at what you should do if you believe that you haven’t been fairly treated by somebody else’s will.

Contested Wills becoming a more common occurrence

In the past, especially since these matters usually involved retaining solicitors with high fees, wills were only contested if they had a high value, and that was not very common. Nowadays there are more inheritance estates with high values, and it is becoming less costly to tackle legal issues because there are fixed-fee legal consultants as an alternative to high priced solicitors. As a result, there has been an on-going rise in the number of contested wills, and people are more willing to stand up for their rights.

In general this is a good thing. We encourage people to dispute any injustice, because it’s important not to allow unfair circumstances to flourish. However, it is not always the case that people who contest wills are as worthy of inheritance as they hold them out to be.

Consider, for example, the case of a faithful servant who has cared for somebody for many years, wielding both soupspoon and toilet paper with equal alacrity and devotion. Would this person not seem to be a more worthy heir to the family fortune than an estranged nephew who never bothered to become involved in the life of the deceased until he/she had already ended?

Unfortunately, if it is your intention to reward somebody for their kindness or good deeds, or even simply to support a favourite charity cause, your will can be undermined by those who feel they have a more valid claim to your assets. Your good intentions can be over-ruled, and the outcome is not always fair.

Why you need to protect your Will

Obviously if you have gone to the trouble of making a will, you have some fairly firm feelings about how you would like the assets of your estate to be divided. There are a few eccentric situations of people creating grossly unfair wills without good reason, and it’s because of those particular cases that taking steps to protect the validity of the choices you make in your own will is so important.

When you don’t take adequate steps to protect your will, any challenge made against it adds to the grief of those you leave behind, and it can also significantly erode or even erase the amount they stand to inherit. This is partly because will challenges can drag on for months or even years at considerable cost, and there is also the issue that the money or property is tied up until the dispute is resolved.

Even worse than this, if inheritance tax has already been assessed the executor of the estate will normally have paid some or all of the tax prior to receiving a grant of probate, and they would normally reclaim this money back from the estate at the time it is distributed to the beneficiaries of the will. However, if there is a challenge against the will, they do not have the opportunity to recover the expense they already outlaid for the tax, and so it can create a condition of financial hardship for them.

How to protect a Will from challenges

The first thing you should try to guard against is somebody alleging that you were not of sound mind at the time that you made the will. One way to do this is to obtain a mental health check-up either immediately before or immediately after signing the will, and request the practitioner to make a formal written statement attesting that you are of sound mind (unless of course you are not!). This document should be signed and dated by the practitioner and stored with the will. Having done this, it will be extremely difficult for anyone to challenge the will on the grounds that you were not of sound mind at the time you made the will.

Another claim somebody can make is that you made the will under pressure, so some clients even go to the lengths of videotaping their dictation and signing of the will, to show that they did so freely and without pressure. If you have any reason to fear that somebody may make a duress claim, you may wish to adopt a similar strategy.

Then there is the claim of undue influence, which is a really difficult legal issue where it is alleged that somebody close to the deceased had the opportunity to influence their decisions to the detriment of somebody who was absent or had less contact with the deceased immediately prior to the time that the will was written. This can be especially problematic if some part of the estate is left to a friend, carer, employee, or a charity.

To guard against a claim of undue influence, you should attempt to qualify anything in the will that may be considered unusual. For example, if there are two brothers who are to inherit different amounts, let’s assume a 70/30 split, you may qualify the larger portion for one of the brothers by making mention of a significant difference in the financial state of the two brothers, and giving this as a reason for why the split is uneven.

When leaving money to a charity, you might mention that this particular cause is very important to you, and that you have a really strong wish that your money can be used to help that cause. If leaving money to an employee, then you would want to mention that they have served you faithfully and that it is your intention they should be adequately rewarded for the faithful service they have provided.

Often when wills are challenged, it is because somebody has become somewhat estranged from the benefactor. They may see that the conditions of the will are unfair and that they have been “cheated out of the inheritance”. It is therefore important that if somebody is to be left out or to receive a substantially lower inheritance than they might have expected, that you give very detailed and explicit reasons for why. Technically this is the only time you can legally defame an ordinary person and get away with it, so if you really have a grievance against somebody, don’t hold anything back in detailing why they should get nothing from your estate.

Provided that everything is written correctly and with appropriate attention to detail, it becomes considerably more difficult for somebody to argue that your intentions were unfair. Above all, however, you should try to ensure that your intentions are not actually unfair. That will ensure it is even more difficult to undermine your will.

Challenging a genuinely unfair Will

The first thing to understand is that you can’t challenge a will (except a “living will”) while the benefactor of that will is still alive. You also must be somebody who has a genuine claim to some part of the estate (meaning that you can’t petition on behalf of somebody else, nor can you challenge the will of a person you never knew and that you are not related to).

Then you can make a challenge if the provisions of the will really are unfair. This means that you have a genuine reason to believe that any of the following situations is true:

  • The person who made the will was not of sound mind at the time that they made it
  • The person who made the will was subjected to undue influence by a third party who coerced them into changing the will to your detriment
  • The person who made the will did so while under pressure
  • The provisions of the will are demonstrably and grossly unfair, for example if a man left nothing for his wife and children, but gave all of the estate to his sister

A malicious will does not stand up when challenged, but unfortunately not everyone who should challenge a will understands that they should do so, and also there are many who should not be challenging wills but who abuse the process and create problems for many people as a result.

For help with any matters related to wills and probate, call Hylton-Potts on 020 7381 8111 or send an email to [email protected] .

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