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In this article Hayley Dent talks about testamentary freedom and the opposing law which allows claims for those who aren’t included in a will. Hayley also touches upon the challenges to wills that can be brought, particularly where homemade wills are involved.
In England and Wales you have the freedom to leave your assets when you die to whoever you choose. Unlike other countries, there are no “forced heirship” rules stipulating which family members must receive a share. However, you should think carefully before deciding where to leave your estate, because there are also laws which allow others to challenge your will or estate after your death.
Challenges to a will
Challenges to a will can be made where the claimant believes:-
- the testator did not have the mental capacity to make a Will
- the testator was under undue influence by another to make decisions that they wouldn’t have done otherwise
- the will was not executed properly within the strict rules.
The importance of using a regulated legal professional cannot be stressed enough, to avoid the pitfalls that commonly give rise to a challenge of this sort. The process is more than simply writing down a person’s wishes; it involves elements that go unnoticed by the client including the assessment of mental capacity to make the will and detailed notes of all the relevant circumstances. Many will writing companies and unregulated will writers offer a cheap option to drawing up your will, but most are not backed by a regulator and indemnity insurance in case things go wrong.
Claims for financial provision where a family member has been excluded from a will are becoming more common than ever before. In our increasingly litigious society, it is essential to consider potential claims because they can result in lengthy, distressing and costly legal proceedings after your death.
You might have very good reasons to exclude a close family member from your will or leave them less than they expect. Whilst a legal challenge cannot be prevented you can take steps to best avoid it and support its defence.
Historically, the Romans are reported to have set aside wills that left the natural heirs without anything, but where something was left, however small, the wills would be upheld because it proved intention. Similarly, Charles Dickens’s “The Pickwick Papers” talks about sons “being left with a shilling”, the practice of leaving the eldest son only a shilling when the rest of the estate was gifted to another. It was a way of expressing that the eldest had not been forgotten and a conscious decision had been made to leave the estate elsewhere. If he were left “without a shilling”, the concern would in fact be that the testator hadn’t considered his estate properly. Modern legislation isn’t as simple as this, but there are things you can consider when drafting your will which may make a disgruntled family member think again before raising a claim and running up a costly legal bill.
In short, it is your money and you can leave it to whomever you wish, but you are always best seeking the right advice when you draft your will, to discuss all of your options and hopefully avoid your estate paying for a lengthy legal battle after you die.
Whilst we urge you to speak to a regulated professional before even drawing up your will, we understand that sometimes the circumstances land you at the beginning of a claim instead. If you require advice on bringing or defending a claim, our teams have a breadth of experience in private client law and contested wills and probate to guide you in the right direction.
Whatever your situation, contact us today for an initial consultation.
The content of this post does not constitute legal advice and should not be relied upon. The content is subject to change and we accept no liability for individuals relying on the information within this article.