So many claims: is making a Will still necessary?

In our last few posts, we’ve looked in detail at Inheritance Act claims which are just one type of claim that may be made against an estate. With a rapidly growing number of disputes, you can be forgiven for wondering if it’s even worth making a Will at all. Do we really have testamentary freedom any more – i.e. the ability to leave our assets to who we choose?

Despite the limitations that the Court’s powers under the Inheritance Act place on the principle of testamentary freedom, a Will is still necessary. Without one, the outcome of intestacy rules is unlikely to be satisfactory.

Whilst a Will can be challenged, most successful Inheritance Act claims result in a minority award from the estate, leaving the principle of testamentary freedom intact for the bulk of assets. Further, where the testator does not make a Will or write a letter of wishes, a court faced with an Inheritance Act claim is unable to take their testamentary wishes into account at all. In the Ilott case, the absence of a Will would likely have assisted the daughter’s claim and undermined the mother’s true intentions even further[1].

Additionally, Wills can cover matters such as charitable gifts, guardianship for minor children[2], the gift of and upkeep for pets[3] and funeral wishes (although the latter are not legally binding).[4]

However, given the increase in claims against estates, Will writing lawyers need to have a detailed understanding of Inheritance Act decisions. A claim is clearly not in the client’s best interests, due to unpredictable costs[5] and the devastating effect it can have on families.

In addition, Will writers must consider the possibility of other probate claims. These include claims for lack of testamentary capacity[6], lack of valid execution[7], lack of knowledge or approval[8], undue influence[9], fraud[10], rectification[11], promissory estoppel[12] and deathbed gifts[13]. A claimant wishing to challenge an estate will likely consider all types of claim and so in depth knowledge of these problems is essential.

Our lawyers have an in depth understanding of both best Will writing practice and the issues that lead to estates being challenged. Whether you want to make a simple Will or you are considering leaving out relatives who would typically expect to be included, we are in an excellent position to advise you. Find out more about making a Will here, or learn more about contesting a Will here.

[1] Edward Hewitt, ‘Ilott v Mitson: round five(!)’ (Private Client Business, 2015) P.C.B. 242.

[2]Appointing guardians in wills’ (Practical Law Private Client)

[3]Wills: gifts of pet animals’ (Practical Law Private Client)

[4]What to do when someone dies: client guide’ (Practical Law Private Client)

[5] Morgan-Gould (n 30)

[6] Defined in Banks v Goodfellow QBD 1870.

[7] Wills Act 1837, s 9.

[8] Assessed per Gill v Woodall [2010] EWCA Civ 1430 confirmed in Sharp v Hutchins [2015] EWHC 1240 (Ch).

[9] See e.g. Schrader v Schrader [2013] EWHC 466 (Ch).

[10] See e.g. Allen v M’Pherson (1847) 41(1847) 1 HLC 191.

[11] See e.g. Marley v Rawlings and Anor [2014] UKSC 2.

[12] See e.g. Re Basham [1986] 1 WLR 498.

[13] See e.g. Re Craven’s Estate (No.1) [1937] Ch.423.

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