Charlotte Fielding – a solicitor in our dispute resolution team – on why it’s so important to avoid will disputes and what steps you can take…
We have seen a steady increase in will disputes which is why we were not surprised to read about a recent case in the High Court involving a 47-year-old woman who has been left out of her mother’s will in favour of her brother. http://www.telegraph.co.uk/news/uknews/law-and-order/10646282/Woman-waited-for-mother-to-die-for-inheritance-court-hears.html
She is challenging the validity of the will and is also claiming that she is entitled to “reasonable provision” from her mother’s estate. She claims that she is unable to work and therefore was financially dependent on her late mother, despite her being an adult. The defence argues that she has done nothing to find work for many years, as she expected to receive a share of her mother’s £200,000 estate. She also didn’t support her mother in her final years, whilst her brother visited their mother regularly and cared for her.
The decision in this case is expected at a later date, but it is a clear example of how feuds can arise following the death of a family member when it is often too late for the deceased to explain exactly what their wishes and intentions were. Our solicitors in the litigation department are experts on such disputes and are able to guide clients when such a conflict arises.
However, there are things that you can do during your lifetime to minimise the risk of these kinds of disputes….
One of the most common reasons for a dispute is that someone claims they should have been provided for in a will. You are entitled to leave your estate howsoever you wish and you may have personal reasons why you do not wish to include someone in your will. For example, if you have children, you may feel that one child has received more money from you during your lifetime or that one child is in more need of financial support after you have passed away. Or, as is the case above, you may feel that you want to leave one child more money as an acknowledgement for the all the care and support they have provided for you.
The law does not say that you must leave your estate equally to your children, grandchildren or parents, but if you do wish to leave your estate unequally then it is crucial that you supplement your will with a Letter of Wishes setting out your reasons and motivations for leaving your will in the way that you have. A Letter of Wishes can be updated easily and as many times as you like without having to go through any particular formalities. You may choose the wording and it can be as personal as you like.
If you choose to leave some money in a trust then you can leave guidance in your Letter of Wishes about how you would like your trustees to use the money. A Letter of Wishes is not binding, but it is clear guidance about your wishes and motivations and if a dispute did ever arise then it would be valuable evidence to defend any claim. A judge would give considerable weight to a Letter of Wishes clearly setting out reasons for leaving their will in a particular way and a judge would therefore be less likely to deviate away from what it states.
As we advise you in creating a new will, we will discuss all of your personal and financial circumstances with you to ensure that we reduce the risks of disputes or claims arising after your death. Whilst you go through the process, we also recommend that you do have conversations with your family members to explain why you intend to leave your estate in a particular way so as to draw out any potential issues now rather than after your death.