Can preparing a Will help to avoid a claim against my estate?

Can a Will prevent a claim against your estate?

A Will cannot completely prevent a claim against your estate or stop someone contesting a Will. However, a professionally prepared Will can significantly reduce the risk of inheritance disputes by clearly setting out your intentions, making appropriate provision for dependants, and evidencing your decision-making.

Free Wills Month takes place each March (and again in October every year), offering an opportunity to prepare a Will through participating firms and charities. Despite this, the National Wills Report estimates that only around 37% of adults in the UK have made a Will.

It is of no surprise perhaps that of those surveyed, over 56% of over 55’s have made a Will. What is surprising however is that of those surveyed between the ages of 31 and 54, an age demographic where you would expect there are assets to leave and perhaps children to care for, less than a third do not have a Will.

A lack of Will provisions can be the common cause of difficulties in the administration of an estate, and is one of the most frequent causes of inheritance disputes and claims against an estate. Death is sadly often the reason for families to gather and to consider how to navigate the wishes of a loved one’s affairs. Often however, views on what a loved one would have wished for in the division of their assets, and misunderstandings in the law and the intestacy rules in the UK where there is no Will, can lead to family divisions and unnecessary costs to resolve difficulties.

Common issues that can be encountered when a Will is not in place are as follows:

Disagreements on funeral wishes and whether a loved one wished to be buried or cremated.

Funerals are often arranged as a first priority after someone has died. Having appropriate Will provisions to set out wishes removes any ambiguity about burial preferences and ensures that no upset is caused to family members who may mistakenly believe preferences should be different.

Misunderstandings on who can apply for the grant in an estate if there is no Will and who has responsibility to administer the estate.

In the absence of a Will, there is an order of preference set by statute (the Non-Contentious Probate Rules 1987) which confirms who is entitled to take out a grant of probate in the absence of a Will. Common misunderstandings can occur between siblings in cases where children are the surviving relatives. Preferential status on who can take out a grant is not given based on the age of a child. All have the same legal status to apply together, irrespective of age or involvement with their parent before death.

In addition, common law spouses are not recognised as a category of person who can take out a grant on their partner’s death. Other categories of recognised family members, such as adult children from a prior marriage, or parents, or siblings, may take preference. Preparing a Will to secure the inclusion of a common law partner avoids any difficulties that may occur when family members of a deceased partner take over the administration of an estate.

Incorrect assumptions about the status of a “common law spouse” and their entitlement to estate assets.

Intestacy laws do not recognise a common law spouse as a person who can benefit from a partner’s estate. Having no Will leaves a surviving partner vulnerable and your estate vulnerable to a claim from the surviving partner if there was financial reliance. This is a common trigger for inheritance claims against an estate. In cases where an estate is modest in value, those benefitting and the partner are exposed to litigation costs that may have been avoidable had a Will been prepared.

Difficulties in distributing personal items and mementos, especially where preferences had been discussed during life about sentimental items.

No Will means no preferences can be adhered to. Preparing a Will that sets out preferences on sentimental items, such as the division of jewellery, or family heirlooms to be passed down through the generations, can resolve any misunderstandings and reduce the risk of family disputes over an estate.

Cohabitees / extended tenants

In circumstances where someone was living in a property, the absence of a Will can cause difficulties in either securing the rights to continue occupation for that person (if that was the intention) or alternatively in removing someone from a property who does not want to leave. In the absence of a Will, resolving these issues can result in costly claims to the estate which, with careful planning and discussion, may otherwise have been avoided.

No appropriate guardianship provisions for minor children.

Where there is a surviving parent named on a birth certificate, guardianship will ordinarily pass to this surviving parent. Where both parents are no longer living, having no provisions may cause unnecessary difficulties and misunderstandings as to who can legally care for children after death. With families not always living in the same locality, family members may not be suitably placed to take on the care responsibilities for younger children, or preferences may be for close friends. Preparing a Will ensures appropriate consideration of who will care for children.

Lack of understanding of any tax liabilities the estate may owe, or the relevance of gifts given away during lifetime.

There are rules that determine how gifts made during a person’s lifetime and within seven years of death should be treated. Although these gifts are often made outside of a Will, appointing a professional executor in a Will to deal with these issues, or family members who will seek professional advice, helps ensure that the estate does not fall foul of adverse issues if not all considerations are given to gifts.

In estates where business assets are owned, a lack of appointment of an executor or separate planning to provide authority for someone to continue business operations until ownership is transferred to the beneficiaries.

Having no person appointed under the authority of a Will could be fatal to its immediate operation to continue the business as a going concern.

Exposure to claims for maintenance from persons that may have been financially reliant on your loved one.

Seeking professional legal advice and preparing a Will, won’t necessarily avoid a claim, although careful consideration of how to provide (or not) for persons that have been provided for can mitigate against potential claims, including claims brought under the Inheritance Act.

The estate passing to family members via intestacy that your loved one would not have wanted to benefit.

The intestacy rules do not consider estrangement or difficulties in relations. Having no Will in place may lead to relatives that have no relationship with you benefitting from your estate. Preparing a Will is the only means of ensuring that the assets you own pass to your preferred recipients.

Best practice

With family fallouts and administrative difficulties aplenty, preparing a Will and documenting preferences can cause difficulties. Careful consideration of areas of difficulty can make the process easier for you and for family members left behind. Some top tips on Will planning are as follows:

1. Appoint people who can work together to administer your estate. If there are difficulties in choosing who this should be, consider a professional appointment.
2. For complex estates with business assets and taxation issues, take appropriate legal advice before preparing your Will and consider a professional appointment.
3. Where common law partners and cohabitees are to be provided for, a Will is important to preserve their right to continue living in a property or receiving financial assistance. There are options available and discussing appropriate provision is important.
4. If you are concerned about a claim from a family member, consider how you can mitigate this. Taking legal advice will help in discussing options, which may include writing a letter with your Will to explain their exclusion, or providing a reduced amount.
5. Ensure that any relevant financial papers which identify your assets are kept securely with the Will.
6. Consider where your Will is to be stored, ensuring it can be located on death.
7. Tell your executors that a Will has been prepared and where this is stored.