WHERE THERE'S A WILL THERE'S A WAR

Andrew Morley, Chartered Legal Executive and Partner at Chattertons has forty years' experience dealing with disputes and here he explains how a last will may not be the last word if someone decides to challenge this.

Nothing is certain but death and taxes, so the proverb goes. And in death is the final chance to determine how your hard earned money is distributed. This is done by a will and in this most important of documents most of us reflect family ties, friendships and charities. Sadly, many do not make a will at all and then what is called the law of intestacy dictates where the money goes; and it does not necessarily all go to the surviving spouse or civil partner and in the worst case everything could go to the Crown to help pay off the national debt!

A will is essential if you want to be certain what is to happen after you die. And a professionally drawn will is the best way to ensure that certainty.

The law gives those of us over the age of 18 and of sound mind the freedom in a will to dispose of our assets after death in any way we wish. But, as we have seen, few things are certain, disputes can still arise, and they have a habit of bringing out the worst. All at a time of grief. And the star witness has just died.

There are two types of dispute. First is over the will itself. To be valid a will must comply with the Wills Act 1837 which sets out the formalities including how the will is signed and witnessed. These formalities are strict and it is not worth taking the chance to do it yourself with a will or use anyone other than a solicitor specialising in this field.

It is often claimed that the testator (the person who made the will) was not of sound mind, that he or she lacked the legal capacity to understand what they were doing when the will was made. Questions then have to be asked as to whether the testator understood the nature of what he or she was doing when making their will, did he or she understand the extent of their assets, comprehend and appreciate the claims on their assets to which they should give effect and, finally, had their mind been so disturbed so as to make decisions which they would not ordinarily have made?

With more and more people suffering from dementia in the UK, the issue of legal capacity is only going to become more frequently raised.

Then there is what lawyers call undue influence. This is the subtle influence over the testator’s mind which coerces him or her into making a will against their true wishes or turning them against other potential beneficiaries.

Finally, we have cases of a will being forged or there being some fraud such as destroying a later will so that an earlier will is used instead.

The second type of dispute is over the inheritance itself. These disputes have as their basis the Inheritance (Provision for Family and Dependants) Act 1975. This gives a Judge the power to, in effect, re-write a will in order to give some (or more) of your money to certain people such as an aggrieved spouse, partner or child who feels they should have been left something or more than they have been left. The group of those entitled to bring these claims has extended over the years.

This Blog is written to raise awareness of these issues. While every effort has been made to ensure that it is correct at the time of first publication it may not be updated, even if the law changes. It is not intended to be specific legal advice and cannot be relied on as such. Chattertons are not responsible or liable for any action taken or not taken as a result of this Blog. If you think any of these matters affect you then we would be happy to advise.

Andrew Morley provides dispute resolution services from our Lincoln office.

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