When Is A Will Not A Will

The law has long recognised that one is allowed to leave one’s property to whomsoever one wishes to leave it.  A Will is called a Will for a reason. It reflects the wishes of the maker.  In most cases that is indeed true and there are a number of other reasons why we all ought to consider making a Will such as:-

  • to appoint people we trust to administer our affairs when we are gone and to carry out our wishes
  • potentially to reduce the tax liability that might otherwise have arisen
  • to appoint guardians for our children to ensure our children are brought up as we would want them to be brought up.

That said, a number of potential pitfalls awaits the unwary and the rise in the number of contested cases in recent years sometimes belies the freedom that we assume goes with Will making.  It also highlights the need to seek proper advice surrounding not only the contents of the Will itself but also dealing with the rationale behind the wording itself.

Common reasons for challenging a Will are :-

(a)        the maker was unduly influenced by someone to leave property other then entirely voluntarily

(b)        the maker did not have mental capacity at the time

(c)        the maker failed to take into account the circumstances of others who should have been considered, giving rise to claims being made under the Inheritance (Provision for Family and Dependants) Act 1975.  Strictly speaking this is not a challenge to the Will itself but rather it is a challenge to the maker’s decision making processes when deciding how to make their Will.  It allows other people to seek ‘reasonable financial provision’ sometimes even if they are seemingly already well provided for in the Will.

Any challenge to the terms of a Will is extremely upsetting for those involved and most disputes are highly charged emotionally.  They are also, sadly, very expensive to resolve.

What is even more sad, however, is that many disputes could have been avoided or at least their impact could have been mitigated by the maker having taken proper advice before committing pen to paper.  Appropriate wording in the Will itself or a carefully crafted letter of wishes can often nip what might otherwise become a war of attrition in the bud.

Whilst few of us relish the prospect of thinking about it, we cannot take it with us and we cannot directly apportion it out when we are gone.  We can, however, do our best to ensure it goes where we want it to go.  Why scrimp on the small cost of making a Will during our lifetimes when the alternative is a bill often running to many thousands of pounds once we are gone?  Come and see us today and turn your decisions into an investment rather than a curse.

For advice on making a Will or issues with a contested Will contact our team on 0121 227 3850.

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