When a relative dies, there are many challenges to face. Make sure that a challenge to the Will is not one of them.
It is a common and unfortunately misplaced belief that a person is ‘entitled’ to an estate of their next of kin. Unfortunately, challenges to Wills are all the more common in the litigious society evolving. Such claims have undoubtedly increased due to other factors such as people living longer, and having more complex family structures, or business or financial pressures following economic decline in latter years. Still, an argument that ‘it’s not fair’ or ‘I deserve a share’ is not generally an argument which will bear any fruit in the High Court without significant evidence.
Why do challenges to Wills arise?
In the Isle of Man, like many other commonwealth jurisdictions, the law gives us the general power to dispose of all of our property, after our death as we wish. We tell many clients that a ‘Will’ is just that, your last Will, and therefore your decision on how you leave your assets to be gifted or distributed to your beneficiaries. It is entirely for the Testator to decide upon their beneficiaries. We advise at all times that such nominations be supported if possible (and particularly where an independent person may believe the motives or decision to be questionable), by contemporaneous evidence i.e. a side letter or a letter of wishes.
In many ways, the new era of challenges to Wills, or claims on estates are ‘the new divorce’. Replacing matrimonial disputes in the drama stakes, the challenge to a Will is generally a rollercoaster of emotion, filled with grudges, grief, guilt, and often long running family feuds. The challenges remain (and validly so in some cases) on the basis that the star witness, the person who made the Will, is unable to testify to his intentions. The emotional drama such challenges create are often characterised with parties who are entirely entrenched in their own position, and either unwilling or simply unable due to personal emotion to engage with each other, for equally well meaning principles.
What types of challenge are there?
Generally, there are two arms to a challenge to a Will, either on the grounds of inheritance (i.e. ‘I deserve more’), which in general terms in the Isle of Man is a statutory challenge. This would be based upon the failure to provide a reasonable share of a person’s estate for those who were being provided for prior to the Testator’s death. The second type of challenge is in relation to the actual making of the Will, and would cover such circumstances as forgery of a Will, undue influence or a lack of capacity to make the Will in the first place.
Evidentially, particularly in the case of the challenge to the making of a Will and therefore its validity, it is a great challenge to put together a case to convince any judge that the Testator was unduly influenced, or lacked capacity. As highlighted above, this is generally because the Testator, the only person who could testify to their wishes, is no longer available to confirm their intentions.
Over the course of the past few years, this practice and indeed the profession as a whole has seen a great increase in such claims.
We have acted on behalf of the estate, or on behalf of the aggrieved family in disputes over everything from property, and businesses, to more personal items such as family photographs or heirlooms. Without exception, such cases are generally difficult and protracted for all and only extend the grief and ill feeling.
Unfortunately, there is no such thing as a Will which is absolutely watertight, as personal matters, families and relationships can change over the course of time. You can however take certain steps to make sure that your house, or other asset, is as safe as it can be in your Executor’s hands.
What if there is a challenge?
Any challenge to an estate distribution or a Will, will generally lead to costs being incurred by all parties. It is worth bearing in mind for all parties that any costs incurred in advising for example the Executor of the estate, will be borne out of the estate so litigation will undoubtedly dissipate the assets available for distribution. This may be very significant in determining the cost benefit of challenging a Will on a low to medium value estate. Spiralling legal costs would certainly not be within the intention and wishes of many Testators.
It certainly isn’t all bad news however, and an increasing use of mediation or even just negotiation between parties means that many claims still settle prior to getting to Court, or once proceedings have been issued, are settled as between the parties. This is generally
What happens if I don’t leave a Will?
If you haven’t left a Will, you should consider what would happen to those left behind to gather in your estate and then to administer it. Those doing so will be left with this often onerous task, trying to please everyone, and trying to guess the wishes of the person who has not made a Will.
Some of your estate may pass for example to your spouse automatically, such as a house you own jointly (in what we call a ‘joint tenancy’), or bank accounts in joint names.
The general rule is that it is better to have a Will than not, on the basis that at least the basics i.e. nomination of Executor, any guardians for children, and your main beneficiaries will be covered.
How do I protect myself and my beneficiaries from challenges after I die?
Although your position may change with time, it is advised that you do make a Will (as having one is often better than not), and particularly following changes in circumstances such as a marriage, divorce, house move, business sale or a death of a spouse or child.
Where possible, your Will should be drafted by an Advocate, with longevity in mind, and can provide for alternatives if for example your nominated Executor, or indeed your nominated beneficiaries, predecease you.
You should ensure that your Advocate prepares contemporaneous evidence of anything that you think may be questioned in your Will, i.e. if you have disinherited one family member, or made a vast change from one draft Will to the next, or to explain your intentions behind certain gifts. This can be prepared by way of a letter to be kept with your Will after the event, containing any explanation or clarification or intentions that you may wish to clarify. Remember, once your Executor applies for Probate (to allow them to deal with property or bank accounts), your Will becomes a public document, and there may be certain issues that would not be appropriate being explained in a Will.
Despite all of the above, a Will can still be overturned by a Court if there is a doubt as to the validity of the Will, or the capacity of the person who made it.
This sounds complex and costly?
Although there is an initial cost associated with making a Will, this is a comparatively small cost to bear against protecting your worldly assets from challenge at a later stage. Once made, the Will can be updated fairly simply and easily, in most cases without a full re-write. It is a good investment in yours, and your beneficiaries’ future.
Making a Will by yourself, or with a friend is not recommended, even if it saves some cost at the outset. People who do not prepare Wills in the course of their profession, or who do not understand how they could be challenged leave you at a great risk of challenge later, furthermore, those making Wills without advice, may invalidate gifts or the entire Will due to incorrect drafting, incompatibility of terms, or may invite challenge on the grounds of undue influence or forgery if no independent person is there to witness the Will, and prepare appropriate contemporaneous evidence.
Recent case law in England (which would be persuasive in the Isle of Man) has shown that Wills can be challenged successfully where there is undue influence, or lack of capacity which manifests itself where for example the Will is not prepared by a lawyer, repeated visits or a person imposing themselves on an elderly Testator could be evidence of undue influence and successful challenge.
Nowadays when we make a Will, we will consider the future repercussions as far as possible. This often extends to the ‘letter of wishes’ or other evidence, sometimes even extending to file notes confirming our attendance, the preparation of the Will, the intentions of the Testator and his capacity.
Checklist against challenge
- Updating your Will upon any change of circumstances;
- Provide personal instructions to an Advocate;
- Have the Will prepared by an Advocate, and witnessed by the Advocate;
- If you are elderly, infirm or ill, have a doctor or other independent medical carer witness the Will;
- Notify any persons of your intentions, so that any questions they have are resolved early on.
- Include contemporaneous evidence on any questionable points.
Intestacy – Key Facts
If you do not have a Will, your estate will pass as follows:-
- If you are married – to your spouse or your next of kin (if you do not have children), and if next of kin, shared equally if there is more than one (i.e. parents or siblings).
- If you are married with children, your personal chattels and first £250,000 to your spouse, with remainder split as to 50% to your spouse, and the other 50% to your children (if more than one in equal shares).
- If you are unmarried to your next of kin (varying degrees of relationship i.e. firstly to your parents, if not to your siblings, then relatives of lesser degree of full blood and then half blood.
For more information on Wills, Estates, Probate, potential claims or alternative resolution, contact the author Nicola Pitts on +00 1624 611933 or firstname.lastname@example.org
Laurence Keenan Advocates & Solicitors May 2013
Our Advice – Don’t put it off! Will making is relatively inexpensive, and cost effective when you consider the cost to your estate and/or your beneficiaries if a dispute should arise. Your advocate will be able to answer any questions you have, and even the most complex of family or company structures can be included in a way which is appropriate to your individual circumstances.