Planning Your Will To Avoid Family Fall-out

There has been a sharp spike in Will disputes and claims on estates by disappointed beneficiaries in recent years with a 60% increase in court cases in the last year alone. This is only the tip of the ice-berg as we know that many more cases are settled out of court after months of expensive legal wrangling. This begs the question, what can be done to ensure the provision you wish to make for those you want to benefit from your estate as robust as possible from challenge?

• Make a Will. This sounds obvious but 2 out of 3 don’t. The way in which an estate is divided up under the intestacy rules won’t necessarily reflect family circumstances, particularly for those co-habiting or who want to exclude a particular family member.
• Safeguard your Will against being thrown out on a technicality:
  • Seek professional help to make sure the wording is clear and unambiguous and that the document is signed in line with strict legal formalities;
  • Avoid those you do wish to benefit being involved in the process of you making a Will, to fend off any argument that you may have been unduly influenced;
  • A solicitor can assess and record that the person making the Will understands what they are doing and isn’t being influenced by anyone else, otherwise, a Will made by someone in later life or who has health issues is particularly vulnerable to challenge by a disappointed beneficiary.
• Simple mirror Wills are not usually appropriate in a second relationship scenario. Children from a previous relationship being disinherited by a step parent is a common cause of dispute. Wills including trust arrangements can protect the inheritance of the children on second death whilst providing for the surviving partner or spouse in the meantime.
• A side letter separate to your Will may be useful to explain your reasons for choosing one beneficiary over another, but professional input is vital to make sure what you say will actually help fend off a claim rather than provide ammunition for it.
• Making some measured provision for a person who may otherwise have a claim on your estate may be better than leaving those you do wish to benefit with an expensive, drawn out and distressing legal dispute to deal with. A tactic sometimes used is to include a legacy in your Will for someone you might otherwise want to exclude on condition they do not challenge the Will. This won’t prevent them from making a challenge but may make them think twice.
• Different rules apply to property overseas. Some countries including France have ‘forced heirship’ rules meaning you cannot disinherit your children or other nearest relatives. You will need separate advice from a local lawyer and possibly a separate Will to deal with the overseas property. In some countries it may be possible to make an election for the law of England & Wales to apply giving you greater freedom to pass the property on as you wish.
• Think about discussing your plans for passing on money and property when you die with those affected. This is particularly relevant if treating all your children equally in strict monetary terms is difficult or not appropriate. This might be the case, for example, if one of them has health issues or if there is a family business which some but not all of the children are involved in. Managing expectations may help to ward off family disharmony in future. Moreover, with the benefit of specialist legal advice it is usually possible to structure your Will and provision from outside of your estate (from your pension or life insurance held in trust, for example), to achieve a ‘fair’ outcome overall in these situations.

For further information please contact a member of the team below.