It is the inherent thought of every individual that when they die, the contents of the Will that they have drafted will be acted upon as per their last wish. However, this is usually not how it turns out to be and it has adverse affects on the family members and other beneficiaries of the Will.
As per the law existing in England, it is not mandatory for an individual to leave his/her estate and money specifically in favour of their children after their death. However, a spouse or child has the right to go to the court for a share of their relative’s estate if in case sufficient provisions have not been made for them; or they have been left out of the Will entirely. Laws prevalent in Scotland and Northern Ireland operate on different systems.
As per the law existing in England, it is not mandatory for an individual to leave his/her estate and money specifically in favour of their children after their death. However, a spouse or child has the right to go to the court for a share of their relative’s estate if in case sufficient provisions have not been made for them; or they have been left out of the Will entirely. Laws prevalent in Scotland and Northern Ireland operate on different systems.
The Reasons Why a Will is Challenged
The existence of tough economic climate and a significant rise in second marriages have resulted in a substantial increase in the number of people willing to challenge a Will. The process that entails challenging a Will is not an easy one as it can turn out to be very lengthy if the case is a complex one. At the same time, it can be very expensive to carry out the procedure and can also drain a person emotionally.
However, there are a number of situations that call for a Will to be challenged in the UK.
The Will can be deemed as invalid and void owing to the following reasons:
If a family member was not provided for
A Will can be contested by husbands, wives, civil partners, children and other dependents if in case they have been left insufficiently or nothing at all as per the Will. This challenge is categorised under the Inheritance Act 1975 – Provision for Family and Dependents in England and Wales.
There are a number of different cases in which someone may opt to contest a Will. For instance, this can be in situations listed below:
In case you have not left anything for your children, can the Will be challenged?
Once an appeal arises, the court will take a number of aspects into consideration. Many appeals fail to succeed. This is because for a claim to succeed, adult children will normally have to show evidence that they have been maintained financially by their parent while he or she was still alive. Therefore, it is definitely possible for adult children to claim against their parents for not including them in their Will, but this does not necessarily guarantee that they will get anything out of it.
The courts will take due consideration of the present and future standard of living of the adult child and then take a decision whether what is stated in the Will is reasonable for them and their family members.
Intervention of Courts in England and Wales
The courts in England and Wales will intervene if:
If there are issues relating to family disputes and long standing disagreements, solicitors advise both sides to resort to ‘Mediation’ in order to peacefully settle the case Will dispute. It is considerably cheaper when compared to a fully fledged trial and hearing held with respect to contesting a Will. It also increases the chances of arriving at an agreement conducive to both the parties.
Ensuring That Your Will is Not Challenged
There are few things that you can take into account in order to ensure that your legacy passes on to people it is intended for:
Write your Will in a way that it accommodates new changes. This can be in case you have grandchildren or godchildren whom you wish to provide for. It is always advisable to seek professional advice when it comes to drafting a Will in order to ensure that you are making sufficient provisions for your loved ones. By seeking right advice, you will be able to reduce the extent of inheritance tax and avoid any issues that can render your Will invalid. People resorting to write their own Wills tend to make mistakes which is why taking assistance from solicitors is recommended. If you have not drafted your Will, it is worth thinking about it in advance.
The existence of tough economic climate and a significant rise in second marriages have resulted in a substantial increase in the number of people willing to challenge a Will. The process that entails challenging a Will is not an easy one as it can turn out to be very lengthy if the case is a complex one. At the same time, it can be very expensive to carry out the procedure and can also drain a person emotionally.
However, there are a number of situations that call for a Will to be challenged in the UK.
The Will can be deemed as invalid and void owing to the following reasons:
- The person, who has the ownership of the Will or the testator, has been coerced or pressurised against his will to write something that he/she did not want or believe should happen.
- The testator did not possess full mental capacity at the time of drafting a Will which rendered them clueless about what they were doing, for example – a testator suffering from dementia or Alzheimer’s at the time of drafting a Will.
- The Will was not signed or witnessed properly or was drafted under suspicious circumstances
If a family member was not provided for
A Will can be contested by husbands, wives, civil partners, children and other dependents if in case they have been left insufficiently or nothing at all as per the Will. This challenge is categorised under the Inheritance Act 1975 – Provision for Family and Dependents in England and Wales.
There are a number of different cases in which someone may opt to contest a Will. For instance, this can be in situations listed below:
- In case of step families, when a parent dies after a short second marriage and leaves his/her estate and property to the second husband/wife leaving the first husband/wife and children with nothing.
- Families and relatives who live far apart from each other and are emotionally distant which may result in the testator in leaving most of his/her asset and property to a caretaker or a neighbour or a charity. This lets the family suspect foul play which leads them in thinking that the testator must have been pressurised to take a certain decision.
In case you have not left anything for your children, can the Will be challenged?
Once an appeal arises, the court will take a number of aspects into consideration. Many appeals fail to succeed. This is because for a claim to succeed, adult children will normally have to show evidence that they have been maintained financially by their parent while he or she was still alive. Therefore, it is definitely possible for adult children to claim against their parents for not including them in their Will, but this does not necessarily guarantee that they will get anything out of it.
The courts will take due consideration of the present and future standard of living of the adult child and then take a decision whether what is stated in the Will is reasonable for them and their family members.
Intervention of Courts in England and Wales
The courts in England and Wales will intervene if:
- The content of the Will affects a young child. The judge can rewrite the Will if they believe that a dependent was not being provided for sufficiently.
- All the assets of a Will were left to a charity or someone outside the family. The courts can intervene if they feel that the family members were not sufficiently provided for.
If there are issues relating to family disputes and long standing disagreements, solicitors advise both sides to resort to ‘Mediation’ in order to peacefully settle the case Will dispute. It is considerably cheaper when compared to a fully fledged trial and hearing held with respect to contesting a Will. It also increases the chances of arriving at an agreement conducive to both the parties.
Ensuring That Your Will is Not Challenged
There are few things that you can take into account in order to ensure that your legacy passes on to people it is intended for:
- Talk about your Will
- Consider who is likely to challenge your Will
- Ensuring that your Will has no loopholes
- Ensuring that you are in possession of full mental capacity at the time of drafting a Will and you have supporting proof as well
- Notes from solicitor
- Ensure that you are not coerced to do anything
- Leave a Letter
Write your Will in a way that it accommodates new changes. This can be in case you have grandchildren or godchildren whom you wish to provide for. It is always advisable to seek professional advice when it comes to drafting a Will in order to ensure that you are making sufficient provisions for your loved ones. By seeking right advice, you will be able to reduce the extent of inheritance tax and avoid any issues that can render your Will invalid. People resorting to write their own Wills tend to make mistakes which is why taking assistance from solicitors is recommended. If you have not drafted your Will, it is worth thinking about it in advance.