Losing a loved one is difficult enough but what happens when you believe their will does not reflect their true wishes? The periods of lockdown during the COVID-19 pandemic have made assessing the capacity of those making a will, and ensuring they are not being coerced, an additional challenge. Dispute Resolution Solicitor, Coralie Smart, discusses disputing a Will below:

Under what circumstances can a Will be disputed?

A Will could be contested based on two general grounds:

1. The validity of the Will:

  • Was it correctly executed?
  • Did the testator fully acknowledge and approve the contents of their will?
  • Did the testator have the necessary mental capacity?
  • Was there undue influence upon the testator?
  • Was the Will made fraudulently?
  • Did two parties make Mutual Wills and then, after the death of the first, the survivor changed their Will?

2. The content of the Will does not sufficiently provide for an individual that was financially dependent on the deceased, as considered within the Inheritance (Provision for Family and Dependants) Act 1975.

For what reason might the deceased’s wishes in a Will not to be adhered to?

There are a number of reasons why this could happen, such as:

  • The Will is invalid for the purposes of the Wills Act 1837 (e.g. not correctly signed and witnessed or the testator was not of sound mind);
  • The Will does not make adequate provision for a dependant of the deceased, in accordance with the Inheritance (Provision for Family and Dependants) Act 1975;
  • The Will does not provide enough detail as to the distribution of assets/ creation of trusts;
  • The Will is illegal (e.g. the Will is fraudulent or the testator was unduly influenced)
  • The Will had not been updated after the testator’s personal or financial circumstances had changed
  • The Will had not been drafted sufficiently well to account for future eventualities eg. a beneficiary pre-deceasing the testator

Do you consider that there may be an increased number of disputed Wills as a result of Wills now being witnessed remotely?

A valid Will must be signed by the testator in the presence of two independent witnesses. In light of the recent practical difficulties in fulfilling this legal requirement, the Government, on 28 September 2020, passed the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952). This Act allows for the testator and two witnesses to be in separate locations and for the testator’s signature to be witnesses via a video link.

Whilst the impacts of the pandemic presented a clear need for greater flexibility when making a Will, it cannot be denied that witnessing Wills remotely provides an increased opportunity for abuse. For example, it is harder to assess the risk that a person is being unduly influenced to sign a Will when the witnesses are remote. A testator may appear to be alone on the witnesses’ computer screens, but someone may be standing out of shot or even just outside the room and placing duress upon the Testator to sign. Witnesses must be alert to this and decline to act if they have concerns. Similarly, it will likely be more difficult to assess a person’s soundness of mind from behind a computer screen.

To help avoid doubt regarding Will validity, the Law Society has suggested additional wording to add to the testimonium, which is available on their website.

Another potential issue is that counterpart Wills are not permitted. This means once the Will has been signed by the testator, the same, original Will must then be signed by the two witnesses. A Will is only complete once the testator and both witnesses have signed it so if the testator dies in the interim, it will be invalid.

What steps could be taken to help prevent a claim against the deceased’s estate?

If you consider that the terms of your will are in any way controversial, then you may wish to leave further information by way of a letter of wishes. This is a document that can accompany your will, but it is not legally binding. It is an opportunity to expand upon what has been written in your will, potentially giving some reasoning for decisions and to also provide guidance for the individuals dealing with your estate. The letter can cover any aspect of your estate, such as funeral wishes or distribution of your personal items. You can also update the letter of wishes to reflect a change in your circumstances. A solicitor does not need to write the letter of wishes for you, but they are experienced in writing wills and administering estates so can guide you through the issues that it would be sensible to think about.

Why should you use a solicitor to draft a Will rather than an unregulated service or do-it-yourself kit?

The complexity of drafting a Will that accurately reflects an individual’s wishes is often underestimated. When instructing a solicitor to draft your Will, you will be encouraged to discuss and reflect upon issues that you may not have considered and that can be important in ensuring that you adequately provide for those you love. A solicitor can ensure that the Will is drafted to meet an individual’s intentions and can also enable the terms of the Will to allow for a number of possible eventualities. A Solicitor can also ensure that all the legal formalities of drafting a Will are observed and the Will validity is less likely to be questioned as solicitors are alive to issues such as fraud, undue influence, duress, capacity and identity theft. If a Will is properly drafted and signed, significant time and cost could be saved in the future should any dispute arise.

If anyone was to dispute your Will, or bring a claim against your estate, the records made of your conversations with the solicitor could be valuable evidence for your estate. The early provision of these records often allows the Executors to quickly end any potential disputes without the need for protracted legal proceedings.

How can Ellisons help?

We understand just how important it is to resolve a Will dispute as quickly and as effectively as possible. Our Personal Dispute Resolution Solicitors are always on hand to assist when needed. Contact the Ellisons’ Dispute Resolution team today on 01206 764477 or email us at [email protected].