What To Do When The Will Wont Go Your Way
Last month the You magazine posted an article entitled ‘when the Will won’t go your way’. The article picks up on a number of issues created by the more modern and complex family structures that we see in the 21st century. Due to the changing morals of the time and the fact that it is now socially more acceptable in today’s society for people to have not only one, but two, or even more families from respective marriages there has been a rise in inheritance disputes. You magazine quotes a London lawyer who has seen such disputes have risen from about 1 in 100 Wills to about 10 in 100 Wills. More parents favouring one child over another; multiple marriages and the rise in property prices has all contributed to this huge increase in inheritance disputes.
The starting point, however, is that if a Will is valid the provision of the Will stands regardless of how unfair its’ clauses may seem to the respective beneficiaries or those that have been disinherited. A person may distribute their estate to whomever they wish. Which is, arguably, rightly so. If the law were to limit how one distributed their own assets on death the restriction on choice would not sit easily with the concept of autonomy. There is no obligation on an individual to provide inheritance to anybody, although when an individual comes to write their Will they must have an awareness as to the potential individuals who could come to benefit under their Will. This was laid down in Banks v Goodfellow and forms one of the limbs of the test for mental capacity for making a valid Will. It is merely an obligation to consider and is therefore a low threshold.
If those wishes are to disinherit a family member or, for example, leave all of their money to the cat’s home, as long as the individual had the requisite capacity, such a wish should be valid. It is useful to record in the Will or (more discretely bearing in mind the Will becomes a matter of public record when a grant of probate is issued) a signed and dated record stating why a particular individual or individuals have been omitted.
However, for those that feel they have been unjustly over looked then there are two possible options available. Firstly, to challenge the Will. However, there are only limited grounds for doing so and only worth considering if they are a beneficiary under an earlier Will or in the absence of an earlier Will under the rules of intestacy. Secondly, to bring an Inheritance (Provision for Family and Dependants) Act Claim against the estate of the deceased. Again, only certain categories of individuals are entitled to bring a claim.
As the You Magazine suggests this may cause years of turmoil and further disputes and it is important that professional advice is sought.
Tollers’ has a dedicated team to deal with any of your contentious probate issues. If you do require assistance then please Talk to Tollers on 01536 276727.