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• Contentious wills
• Inheritance (Provision for Family and Dependants) Act 1975
• Undue influence

Contentious Wills, Deeds of Variation, and

The Inheritance  (Provision for Family and Dependants) Act 1975 - explained

This article deals with:

• Contentious wills and the probability of a will being challenged;
• Invalid and rejected Wills;
• The Inheritance (Provision for Families and Dependants) Act 1975
• Deeds of Variation;
• Undue Influence

Contentious Wills

A contentious Will is a Will that is challenged for its validity, or content, by someone - the challenge occurring after the testator has died. The most frequent causes of a contentious will are:

• Ambiguous wording of gifts and beneficiaries
• Where one family member is favoured over all others of equal rank  e.g. Everything goes to one child to the exclusion of the other children;
• Where a non-blood relative receives a disproportionate benefit from the will - especially where the will was made just prior to the death of the testator.

Contentious wills are a growing area of business for solicitors, and a concern for many people.

This is why people pay to use the services of a professional will writer when alternatively they can make their own will for a fraction of the cost. They wish their will to be legal, and to be able to stand up to challenges from family members.

Professional will writers make notes -- not just about what the testator wishes to do with their estate when nature takes its natural course but also:

• Who was present at the meeting;
• The health of the testator;
• What questions were asked; by the testator;
• What is the family tree; and
• More

The additional information is taken and noted so that our records can be used to defend a challenge to the will against a challenge from a family member, or if there is a dispute over the interpretation of the will.

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The Probability of Your Will Being Challenged

Firstly, any person can challenge a will; you could challenge your [deceased] neighbours ‘will’ if you wished to.  In reality though very few wills are challenged, and even fewer challenges are successful.

A will is the only legal document that allows you to stipulate who should benefit from your estate in the event of your death. You can give everything to your local dogs home (to the exclusion of your spouse, children, and family) if you so wish – and even though this will create hardship for your family your wishes will stand unless:

• a successful legal challenge to your will is made; or
• all the beneficiaries affected by a proposed change agree that your will should be changed.

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Common Errors in a Will

The second advantage of using a professional Will writer is that it reduces the risk of the will be rejected as a consequence of poor drafting. A surprising number of wills are rejected by the Probate Offices; the rejection often results in the deceased being deemed to have died intestate - with all the resultant inconvenience and costs.  Lets briefly explain:

Technical errors:  Breach the requirements of the Wills Act 1837 (as amended) and your will may be rejected.  Common breaches: •  If you fail to sign and attest your will correctly.   •  Your will is not in writing.   •  Its date of execution cannot be established. • And more.

Ambiguous wording: It is rare for a will to be rejected outright because of poor wording, but it is common for a specific clause or clauses to be rejected - leading to partial intestacy, or the even more expensive option of a court battle to resolve how the wording should be interpreted.  This problem is usually resolved by using the services of a professional will-writer.

Poor drafting of the Will:  This is usually seen where the testator has decided not to use the services of a professional will-drafter.

Whilst a will may not be rejected by Probate Office it is not uncommon to have a will that lacks the powers the executors need to do their job properly. Even the most basic of wills should these days have around 8 ‘precedents’  (i.e. Clauses) setting out powers and controls for the executors.  

Trying to Control the Future from the Grave:  A typical example is ‘I give to my daughter this gift but if she should subsequently divorce then I give the gift to my son.’  What has actually been created here is an implied trust, with all its administration costs and responsibilities.

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The Inheritance  (Provision for Family and Dependants) Act 1975

If you take the example above (‘Everything to the dogs home’) you can see that such a distribution would create hardship for a surviving financially dependant spouse, and dependant children.  To protect against such events legislation was put into place – The Inheritance  (Provision for Family and Dependants) Act 1975.

The Inheritance  (Provision for Family and Dependants) Act 1975 gives certain classes of people, namely ...

1. The wife, or husband, of the deceased

2. The former wife or husband of the deceased who has not remarried

3. A person cohabiting with the deceased

4. A child of the deceased

5. Any person maintained by the deceased

...  the right to claim on a deceased person’s estate.

The law sets out the time frames during which a ‘challenge’ must be made.

Whilst the law acknowledges the need to make provision for people who are dependant upon the deceased it does not retrospectively insist on equality – far from it.  The law courts look at the situation of the ‘challenger’ and the will made by the deceased, and tries to establish if there was any dependency.  Each case is considered individually.

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Deed of Variation

A Deed of Variation is an agreement between all beneficiaries of a will [affected by a proposed change] to change aspects of it - usually the distribution.

It gives the opportunity to put into place effective tax planning opportunities that have been missed whilst the testator (the person who made the will) was alive - and this is the most common reason why the Deed of Variation is used.

It has one major failing; minors cannot be party to such a document; only the Courts can act on behalf of minors where the minors are beneficiaries – and they impose very strict criteria before agreeing to any amendment.  A potential failing of relying upon a Deed of Variation is that the facility may be withdrawn in due course; such action has been contemplated for some time.  Also, it should be born in mind that property once changed under a Deed of Variation cannot be changed again - another words you have just one ‘shot’ to get it right. And finally, undertaking a Deed of Variation can have an impact on future inheritance tax  as the changes are regarded as a ‘potentially exempt transfer’.

In view of the potential complications you should seek professional advice before undertaking a ‘Deed of variation’.

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Undue Influence, lack of Capacity,  and the Law

There are a number of criteria that have to be met for a will to be valid (Wills Act 1837); breach them and Probate Office will reject your will. The most common is the failure to attest (i.e. Sign and witness the will) correctly.

Another increasingly common area of contention is ‘undue influence’ This is where a will is created but the testators wishes are influenced by pressure from a beneficiary who stands to inherit more than they would have inherited had the testator had their own say on the matter.

If it can be shown that the necessary procedures for completion of a will were not adhered to, or that the person lacked capacity to make their will, or that undue influence was a factor in making a will the will can be overturned.  Many ‘disgruntled’ people - who stand to benefit if a will is deemed invalid - will go to extraordinary lengths to prove that it should be so overturned.   

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Aspects You Should Consider

When making your will you need to consider if you need to make provision for someone within your will, and if you do, how much (to avoid falling foul of the Inheritance (Provision for Family and Dependants) Act 1975.  It is easier to ‘defend’ a will where some provision has been made, than a will where no provision whatsoever has been made.

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• Divorse and Remarriage;

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