Challenging Wills – How To Mitigate The Challenge
Following on from our previous article on the successful challenge, we now set out how the mother could have done things differently to ensure her wishes were respected.
There is nothing that you can do to prevent a challenge to your Will or gifts made in life, but you can make it harder with correct advice and advance planning.
In your Will
When making your Will, your solicitor will have a very detailed checklist of information gathering prior to its preparation and advice being given. You may think that this is invasive and daunting, but it enables you to make informed decisions and gives your solicitor the information they need to correctly advise on how to achieve the desired result.
In the case of the successful challenge of the daughter in obtaining one third of her mother’s estate, the Charities essentially lost over £200K with the claim and legal expenses. These monies will never be recovered by the Charities. The reason, she failed to reasonably provide for the maintenance of her daughter and gave it to Charities to which she had no connection.
If the end result was to ensure that the Charities received as much from the estate as possible, knowing that the daughter would challenge her Will for the provision of maintenance, she could have provided for her as follows:
1. Appoint Solicitors as executors
2. Set up a trust of say £200K for the daughter for life – with a direction that the monies be used towards the purchase of a property for the daughter to live in for the rest of her life rent free and any surplus be used to provide an income to daughter and so as not to affect her benefits. Upon death, the £200K or assets that represent it would then pass back to the Charities under the residue
3. Gift the residue to the Charities
4. Insert a clause in the Will stating that if the daughter challenges the Will then the gift to her shall fail and she would receive nothing
Any solicitor advising the daughter on death would advise that provision has been made and it would be very risky and costly to challenge the Will. This may not be what the mother would have wanted to hear, but it would have resulted in the capital of her estate going to the charities.
She could also have sworn an affidavit/statement as to the reasons surrounding the provisions made in her Will to provide her voice from beyond the grave as to why she as done her Will in this manner and how it is reasonable and fully considered. To prevent an argument of lack of capacity, she could also have obtained medical evidence to confirm she understood exactly what she was doing.
In relation to the Charities, she could have taken some involvement and forged a particular connection with them.
Consider lifetime gifting/trusts
Another way to make it harder for someone to challenge where your estate ends up is to make gifts or settlements in life. It is generally much harder to overturn such gifts, other than due to undue influence/pressure on you or lack of capacity, than it is to challenge a Will.
So, if you are set in your mind and know that you will never change this, you could consider:
1. Placing your house in trust
2. Retaining the rights that you need to live in the house, move and have an income
3. Settling the capital of the property on the people/charities that you want it to go to
4. There are more complicated versions of this with the use of discretionary and other trusts which I won’t go into here
The difficulty with this is that;
1. You may not be able to change your mind
2. Events such as death, divorce, bankruptcy of beneficiaries may mean that the property does not go where you intended
3. Please note that if the main or substantial reason behind the gift is a deprivation of your assets for the purposes of obtaining benefits or putting it beyond the reach of the local authority for care fees – the gift can be challenged by them and there are no time limits!
However, it is much harder for a child to challenge this gift on death as they are not challenging your Will but something that you may have done many years earlier.
If you are considering charities, contact us and we can liaise with the specialist departments at the charities to help guide you through this process.
The above is very limited and specific, if you want more information whether you are trying to protect where your estate passes to or challenging a Will or lifetime gift/settlement, you can contact us at firstname.lastname@example.org or call 0115 964 7740 – Curtis Parkinson Solicitors Nottingham.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.