Frederick left his late son’s five children only £50 each out of his £500,000 estate as he was upset that they did not visit him regularly enough.
In this case, the grandchildren decided to bring a claim against his estate on the basis that he was unduly influenced by his surviving children to leave the majority of his estate to them.
When the case finally made it to court, the High Court Judge ruled that the decision made by Frederick Ward Snr was rational and that there was no undue influence after hearing evidence as to how the relationship with his grandchildren had broken down.
The Courts have previously stated in the case of Ilott v Blue Cross [2017] UKSC that, when a Will is challenged, ‘the starting point is testamentary freedom’. It is assumed that Wills are valid and that any decisions made within the Will are intentional, unless a claimant can successfully argue that they aren’t.
If A Will Has Been Made, How Can This Be Challenged?
There are certain categories of people who can claim against a deceased person’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel that they have not been adequately provided for. These include spouses, former spouses (who have not remarried or who are not subject to a clean break order), children, stepchildren, people who are treated as children of the family, cohabitees of more than two years and anyone financially maintained by the deceased at the date of their death.
It is also possible for a Will to be challenged on the grounds that it is not valid; perhaps because the requirements of a valid Will have not been met, or if there is alleged undue influence.
How Could A Solicitor Help To Reduce The Risk Of A Successful Claim Against My Estate?
Firstly, having a Solicitor prepare your Will can ensure that your Will is in accordance with the required legal formalities.
If you are choosing not to provide for a person who may be entitled to make a claim against your estate or who might wish to challenge your Will, then a Solicitor can also prepare a memorandum that will accompany your Will to explain why you have chosen not to provide for them, or they can obtain medical evidence confirming that you had capacity to make the Will.
If your Will is challenged or if a claim is made against your estate, then the Solicitor who prepared the Will can release the Will file to the challenging/claiming party in which evidence will be available to demonstrate that you considered provision for them but decided against it and/or evidence of your capacity to make the Will.
The potential for claims and challenges are a large part of the reason that your Solicitor will insist on seeing you alone to take your instructions.
It is important that you are open with your Solicitor about your family circumstances and your capacity, so that your Solicitor can help you to reduce this risk of claims or challenges being successful later.
Defending a claim or a challenge to a Will after death is very expensive and time consuming so where possible you ought to do all you can to avoid the situation arising.
If you would like any further information then please contact me at s.wildsmith@timms-law.com or on 01283 214 231.
