There are only two certainties in life, death and taxes; as such you should always seriously consider what will happen in relation to your Estate after you pass away. However, even having done so there may still be challenges ahead as your estate may still be open to potential challenges. This can be particularly distressing for your executors and loved ones.

Nevertheless, there are steps that you can take to help protect your estate from any such claims, and to help ensure that your wishes or the wishes of the Deceased are upheld.

In order to know how to protect your estate, you should be aware of the main types of claims that can be made. These include claims that your Will is invalid, and claims for financial provision from your estate.

Validity of a Will

A Will’s validity can be challenged in a number of ways, including (but not limited to):

• Claiming that the Will has been executed incorrectly;
• Challenging the mental capacity of the Deceased at the time that they made the Will, which resulted in the Deceased not understanding the effect of their Will;
• Alleging that the Deceased has been unduly influenced into making a Will with terms that they would not otherwise have included.

The risk of challenges to the validity of a Will can be mitigated by instructing a solicitor to prepare a Will on your behalf who will take steps to ensure that the Will is prepared in a valid and complete format, and who will take any necessary steps to minimise a later challenge – for example in arranging for capacity tests (if and where appropriate), preparing ancillary documents such as letters of wishes, or taking measures to reduce the risk of an argument of undue influence.

Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”)

Another type of claim is one for financial provision from your Estate, under the Act. A claim can be made for a financial award to be granted from the Estate by the following classes of individuals in accordance with Section 1 of the Act:

1. A spouse or civil partner of the Deceased;
2. A former spouse or civil partner of the Deceased who has no subsequently re-married or formed a new civil partnership;
3. A person who was cohabiting with the Deceased for the last two years of the Deceased’s life, if they were living together as if in a civil partnership or marriage;
4. A child of the Deceased;
5. A person who was treated as if they were a child of the Deceased;
6. A person who was financially dependent or otherwise being maintained by the Deceased.

Therefore, there are a wide variety of potential claimants to consider.

Even if you have made some financial provision for the above classes of individuals in your Will, this will not prevent a claim under the Act, as any claim can be brought for “reasonable financial provision”.

What steps can you take?

In order to protect your estate from a potential claim in the future, one of the key steps that you can take will involve:

a) Considering the gifts that you give under the Will carefully, and;

b) producing a Letter of Wishes. This is a document prepared alongside your Will which sets out your reasons for any decisions you have made. Whilst a Letter of Wishes does not form part of the legally enforceable Will, it can provide an explanation as to the terms that are included therein, such as providing some detail as to who you think could seek a claim against and why you have not made provision for them in your Will.

For example, an estranged spouse, child, or partner may be excluded from the Will and you may include details within a Letter of Wishes as to why there is no need for financial provision to be made for that individual, such as details confirming, if appropriate that:

1. the potential Claimant is not dependent on you in any way;
2. they have sufficient financial means of their own without provision from your Estate;
3. details of any financial provision that has already been provided during your lifetime, and;
4. you are under no moral obligation to provide for them, and the reasons why.

This will help anyone looking at your Will following your death to understand your reasoning and will assist your Executors in defending against their claims.

How to deal with a claim as an Executor

If you are an Executor under a Will and you are dealing with a proposed claim against the Estate, you should be aware that:

1. In relation to a challenge to the validity of a will, the burden is on the Claimant to prove that:

• a. there are grounds for “real doubt” that the Deceased had capacity to make a Will (thereafter it will be for the Estate to prove that the Deceased had mental capacity at the time that the Will was made); or otherwise
• b. the Deceased was unduly influenced into making their Will or otherwise into including certain terms in their Will;

2. In relation to a claim for financial provision in accordance with the Act, the burden is on the Claimant to prove:

• a. that the Claimant falls into the specific classes of Claimant set out in the Act; and
• b. that the Deceased has not made “reasonable financial provision” for the Claimant; and
• c. the level of financial provision that should have been made for the Claimant.

If the Claimant is able to prove, to the satisfaction of the Court, the above matters then there may be a need to vary the Will or to enter into settlement negotiations. As Executors, your role will require you to remain neutral and act in the best interests of the Estate as a whole, even if you are also a beneficiary under the Will.

If you would like to make a new Will or prepare a Letter of Wishes, please contact 01543 263 456 and ask to speak with David Lane, a Director in our Wills and Probate Team.

If you would like to speak to someone about a defending a claim against an Estate, please contact Victoria Ramshaw, a Solicitor in our Dispute Resolution Team, on 01543 267 238 or by email to vramshaw@ansons.law.

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