Peter Dymock, Partner
WHERE THERE’S A WILL THERE’S A WAY….
Everyone should make a Will to set out how exactly they want their estate to be divided. Many people still do not make a Will and then their estate is divided in a way laid down by Parliament. This may not have the desired outcome either for you or for those who might hope to benefit from a share of your estate. Peter Dymock, Partner at QualitySolicitors, Large & Gibson says, “the economic climate has ravished the finances of ordinary people. With dwindling savings and inadequate pensions, statistics show that more people than ever now rely on inherited money to buy property and for help in their retirement.”
When making a Will you want to benefit loved-ones, but at the same time you have to acknowledge your responsibilities and this is where the law steps in . In the eyes of the law, you have to make reasonable financial provision for certain people. That can include estranged spouses or an ex-husband/wife. It includes children, meaning adult children as well- even those who might have treated you badly. People who are not married but have lived together like husband and wife (including same sex couples) for more than 2 years are included and the law also extends to any person who immediately before your death was financially dependent on you.
SO WHERE THERE’S A WILL THERE’S A WAY – OR IS THERE?
Peter Dymock says “You might think when someone makes a valid legal Will then that is that. Not necessarily so. If you don’t make reasonable financial provision for people eligible to make a claim, then within six months of the Probate- and in some circumstances even later- they can claim a share of your estate. This is a claim under the 1975 Inheritance Act. Potentially that means going to Court and that the estate cannot then be distributed until the matter is finally concluded. Apart from the case of a spouse, a Court will consider what share of the estate that person requires for his or her maintenance needs.
There might be disgruntled family members who are not eligible to claim under the 1975 Inheritance Act. There are other ways to challenge the validity of a Will and sometimes people do. Some Wills can be poorly drafted and that leads to questions of interpretation. There are strict legal requirements for the execution of a Will. In addition there are other ways of challenging a Will, for example lack of mental capacity, undue influence, and lack of knowledge and approval.
If a person making a Will suffers from an illness of the mind such as the onset of dementia he may or may not have lucid moments so arguments can be generated – usually by disgruntled family members – that the person lacked the required mental capacity. More often than not this is a question of medical evidence. A good solicitor when taking Will instructions will usually obtain a medical report to confirm his client’s testamentary capacity to head off a potential argument in future.
Erin HuntProbate lawyer at QualitySolicitors Large & Gibson says “A professionally drafted Will is an absolute must, not just to get it right but to consider all of the implications. Some of these might not be immediately obvious.”
In the event of a Will dispute, the potential Claimant will usually start with a Caveat (warning) lodged at the Probate Registry. The Executors intending to prove the Will then have to “warn off” the Caveat. This is the start of a legal process that can take months or even years to resolve. It can also be hugely expensive in terms of legal costs. In some cases those costs might represent a very sizeable proportion of the estate.
Litigation is best avoided and going to Court is always the last resort. The process of making a claim usually starts with enquiries about the facts and circumstances in which the deceased’s Will was made. Those enquiries will often be made of the solicitor who drafted the Will and hopefully he or she kept detailed file notes!
Lawyers call claims of this sort “Contentious Probate”. It is a specialist area of the law and not every solicitor has experience of handling these cases.
Peter Dymock says “It is always best if possible to resolve disputes at an early stage, by negotiation. These days the parties to a dispute are encouraged to go to mediation before applying to the Court. We at QualitySolicitors Large & Gibson have considerable experience of dealing with cases of this kind. Prompt advice is always best.” Unfortunately with Government public spending cutbacks legal aid is not generally available for these claims. We offer a variety of funding options including free initial assessment, fixed fees and payment plans to suit all pockets. So contact us immediately-
To make a claim ,or
To defend a claim, or
To discuss making a Will or if you want to review your existing Will