The newspaper headlines tell you everything you need to know when there is a dispute over a will. Disagreements over a deceased person’s money or property can be devastating for those left behind and very expensive to resolve.
Disagreements over a will can lead to property and assets being tied up for many years meaning those who seek to inherit may have to put plans on hold.
Surprisingly, some 47% of adults living in the United Kingdom have never discussed inheritance matters, according to research by the Society of Trust and Estate Practitioners. The Society also discovered that 26% of adults do not see discussing inheritance as a priority. Many people either do not make a will or make a poorly prepared and considered will. It is not surprising therefore that disputes over inheritance are on the increase.
There is no one single factor behind this increase in disputes over inheritance. Disappointment at not receiving an inheritance or receiving an inheritance less than was indicated, money or property being left outside the immediate family, the increasing accumulation of wealth in the hands of the older generation and the expectations of some younger people all play a part.
In my experience, the single biggest factor in disputes arises from the failure to make a good, valid and properly considered will. If a person dies without making a valid will then the Law dictates how that person’s estate is distributed and it may not go to those the deceased would have intended. In fact, some, all or a part of the estate may end up going to those who the deceased would never have made any provision for. This outcome would probably have cause disappointment and even anger for the deceased.
A will that is, on the face of it, rational and is properly executed in accordance with the formal requirements is prima facie a valid will. The instructions for that will must be clear and understood by the will drafter who then accurately records that in writing and arranges for the formal requirements to be adopted. If you have not made a will or your will may need updating then make an appointment to see a qualified and experienced will drafter.
WHY AND HOW ARE WILLS CHALLENGED?
A will that is, on the face if it, rational and properly executed in accordance with legal requirements is a prima facie valid. But during my career as a solicitor I have been asked many times to advise on the validity or otherwise of a will or codicil. Each case is different, but there are a number of reasons why a will may not be valid.
Almost everyone is aware that, in order to make a valid will, the person making it must have the necessary “mental” capacity. Put simply this means assessing the person’s “state of mind” when the will was being prepared and signed. Challenging the validity of a will by alleging the person was not of sound mind can be an uphill task and many such challenges are abandoned or fail due to lack of evidence.
The person making the will must also have known and understood what was in the will. At first sight this might seem obvious if the will has actually been signed and been witnessed. What a court would be looking for if a will is challenged on the basis that the deceased did not know and approve of the contents, is actual knowledge that this is the case. The law will presume that the deceased knew of and approved the will if it is signed in accordance with the legal requirements and there is proof of legal capacity to make the will.
Most often the witnesses will be asked to give evidence on these issues if a challenge is raised. It is the task of those relying upon the will to prove that the maker of the will knew and approved of the contents. A court will be cautious if the surrounding circumstances arouse suspicion and the task of those proving the will is valid may increase in line with the degree of suspicion.
Most people, if asked, will say they are aware that a will must be witnessed. Most will say that two witnesses are required and that would be correct in the vast majority of cases. There are strict formal requirements to be adopted when the will is signed and witnessed and, in my experience, the requirements are not always properly observed.
In the press recently there have been a number of reports of wills being forged. Not only is the document never a valid will, but forgery is a crime and the court is not shy of awarding custodial sentences for that crime.
Often the circumstances surrounding the making of a will give rise to an indication that the maker of the will was not a “free agent”. In other words, the will is not really theirs but the invention or product of someone who stands to benefit. There is nothing unlawful in someone using influence on the person making the will, but the law will not allow a will to stand if it has been produced as a result of deceit or coercion. Proving that a will is not a valid, is often not straightforward. However, many challenges do succeed and others end in agreement that the will ought not to be treated as a valid will. In that case a copy or original of the deceased’s earlier will may be proved to probate or a compromise reached resulting in the estate being distributed by agreement between the beneficiaries.
DEALING WITH PROBLEMS ARISING FROM A WILL…
In this world nothing can be said to be certain, except death and taxes, as Benjamin Franklin said. And so the inevitable happens and the maker of a will dies. Assuming that the will is valid and not challenged, it is then up to those who are tasked with administering the estate and looking after the assets for the beneficiaries to carry out their work.
But what happens if those appointed by the will as Executors and Trustees fail to take up their roles and duties or, if they do, do so badly? Often the Executors and Trustees are family members or friends of the deceased and a lack of thought about their suitability can lead to mistrust, misunderstanding, delay in administering the estate and distributing the assets.
Sometimes those appointed can seek to impose their own views on what they believe the deceased wanted to happen and try to alter the dispositions in the will or make it difficult for the beneficiaries. Inefficient or inept Executors or Trustees can lead to disputes that can be very expensive to resolve and lead to the estate and beneficiaries suffering financial loss.
As a solicitor, my experiences of these matters suggest that these difficulties are more commonplace than disputes over the validity of a will. Resolving the problems caused can be expensive and time-consuming.
Put simply, the duties of the Executors are to protect the assets, pay the debts of the estate and then distribute the assets according to the will. The duties of the Trustees (more often the same people appointed as Executors) is to hold the property and assets of the estate in trust for the beneficiaries once the administration has been completed. Sometimes the terms of a will require the Trustees to hold property and assets in the long-term and invest those assets for the benefit of the beneficiaries some of whom may be spouses or children.
If an Executor or Trustee appointed by the will does not wish to take up an appointment then, provided that they have not started to undertake the duties, they can usually step aside. There are formal requirements that need to be addressed and it is best to see a lawyer in order to ensure the correct paperwork is completed.
But what if those appointed take up the offices of Executor and Trustee but then seek to use their position to their own advantage? They may fail to administer the estate correctly or fail to invest and protect the assets which then cause the beneficiaries loss. If the dilatory Executors or Trustees fail to step aside on terms then it is possible to apply to the court for their removal and replacement. The test the courts usually apply is what is in the best interests of the beneficiaries. But removal might not prove easy if the Executors or Trustees object. Each case is determined on its own facts but if an estate is not being administered correctly or the Trustees are failing in their duties to the beneficiaries the court will often replace them. It may also be necessary to seek to recover losses caused by the Executors or Trustees from them personally.
When you are making your will it is important that you choose your Executors and Trustees carefully and ensure that they are aware of the duties and responsibilities they will be taking on. Equally, avoid choosing an Executor and Trustee who might prove unhelpful in relation to the administration of the estate or who might promote the interests of their own relatives or friends who may benefit from your largess. If the beneficiaries of a will are unhappy with the actions or inactions of Executors or Trustees then is often pays to object before they have had the opportunity to take up their roles.