Will makers are free to make the Will they wish, just as the probate documents for Lady Lucan revealed that she had cut her three children out of her Will and left her entire estate to the homelessness charity Shelter.
However, some people are understandably concerned about subsequent claims being made against their estates after their death – often by someone they have decided not to include in their Will or by someone who feels they should have been benefitted in additional or other ways.
Elizabeth Rees, a solicitor on the Private client team at Tallents Solicitors in Mansfield explains that while you cannot stop claims being brought against your Will, there are a number of steps that can be taken to reduce the chances of a successful claim.
Making a Statement of Explanation in your Will
“When you sit down to write your Will, you have gone to the considerable effort of assessing your assets and determining who you would like to inherit them after you have gone.
“In some instances, it is appropriate to further consider whether additional steps are required to ensure your wishes are carried out. If this is the case, then the will maker can prepare a Statement of Explanation outlining the reasons for their decision, as Lady Lucan did in her Will.”
Grounds for bringing a claim against an estate
“There are a number of potential grounds for bringing claims against a deceased’s estate. These include: arguments that the will maker lacked testamentary capacity, that the Will was not executed properly, that there was a lack of knowledge and approval by the will maker, the will maker was subject to undue influence, or that the document was fraudulent or forged.
“However, should any application be heard, then the court is then entitled to take into account any relevant matters. As such, a Statement of Explanation would give an excellent insight into the will maker’s rationale at the time the Will was made.”
Ensuring your wishes are carried out
“Equally, it may sometimes be appropriate to leave property to a needy beneficiary rather than an affluent one. If a claim is made, then the court is required to assess both the needs of the applicant and those of any other beneficiary in the estate. The Supreme Court quite recently held that charities fall into this ‘needy’ category, as they are dependent on legacy income to continue their charitable objectives.”
“Forfeiture clauses can also be utilised when writing a Will to reduce the risk of a challenge to your wishes. You may wish to leave a small sum to an estranged relative with along with a clause that any attempts to challenge the Will could result in the deprivation of their entitlement.”
“Using a professional will maker, such as a solicitor, can also serve to mitigate against a successful claim as testamentary capacity will be taken into account when drafting the Will.
“If you are concerned about the prospect of a claim being made against your estate then you may wish to consider making a written statement setting out the reasons (without bitterness) for making limited or no provision for the potential claimant. If your Will is subsequently disputed it may provide valuable evidence of your intentions and the reasons for your decision.”
Tallents Solicitors offers appointments to discuss making single and joint Wills at all three of its offices. Elizabeth Rees is available for appointments at the Mansfield office on Westgate.