The Silent Witness

Disputes concerning wills are becoming increasingly common. More of us cohabit, divorce, remarry and have children with second spouses (who may already have children from a previous relationship); in fact the Office of National Statistics reported that in 2008 almost 27% of marriages involved at least one party that had been married before. Additionally, higher property prices mean that the average person’s estate is worth more than ever before; we are more aware of our legal rights and, because of the sums involved, more willing to go to court!

A number of high profile cases have made recent headlines. In one case Mr J’s three sons from his first marriage challenged the validity of the provsions their father had made for his second wife. Before his death - knowing the contents of his will - they even went to the extent of secretly videoing their father, who suffered from Parkinsons Disease, and tried to use the footage in court as evidence that he lacked understanding and judgement. Their case was unsucessful.

Another widely reported case is that of Gill v the RSPCA. Mr and Mrs Gill made Wills leaving everything to each other and on the second death the entire estate to the RSPCA. They had one daughter, a doctor, but specifically stated that adequate provision had been made for her during their lifetime. However, their daughter successfully persuaded the Court that her mother’s will was made under undue influence from her father and that her parents had led her to believe she would inherit the farm, on which basis she had bought a neighbouring farm and given up her career. The Court ordered that Dr Gill should inherit the entire estate and the RSPCA received nothing.

The Wills Act 1837 sets out the requirements for a valid will; essentially it must be in writing and signed by the person making the will (the testator) in the presence of at least two witnesses. This seems straightforward but a will can be challenged if the testator can be shown to be mentally incapable or failed to understand the effect or content of the document, or had been coerced into making a provision against his or her true wishes, or the will was incorrectly executed.

It may be a surprise to learn that even if a will is valid and reflects the testator’s wishes, it can still be challenged successfully. The Inheritance (Provision for Family and Dependants) Act 1975 can be used by certain categories of people to argue that the will does not make reasonable financial provision for them. Such categories include the spouse, children, persons that are treated as children (for example, step children living with the deceased), dependants, the cohabitee of the deceased and also a former spouse who has not remarried.

However, just because a person falls into one of the categories that allows them to make a claim does not mean that they will be sucessful. But, when an estate is of a relatively modest value the costs involved in litigating a contested probate matter to trial can almost equal the amount being argued over! Therefore, it is really important to get your affairs in order and to take specialist advice so that you are aware of all the issues in order to reduce the possibility of any claims and disputes.

Birkett Long’s team of specialists can assist in preparing your Will to minimise the chance of claims or deal with claims that have already arisen whether through the litigation process or mediation. Contact Vicky Raynes on 01206 217611 or visit www.birkettlong.co.uk