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Challenging Wills – How To Mitigate The Challenge
26 August, 2021 4 minutes reading time
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 you make a Will, your solicitor will gather detailed information about your assets and wishes. This might seem invasive, but it’s crucial for providing you with the best advice and ensuring your Will accurately reflects your intentions.
Recent Case
For example, in a recent case, a daughter successfully challenged her mother’s Will, which left most of the estate to charities. The daughter received one-third of the estate, costing the charities over £200,000 in legal fees and lost inheritance. This highlights the importance of considering all potential claims and ensuring your Will provides for your dependents, as failing to do so can lead to costly legal battles and unintended consequences.
If the mother’s primary goal was to maximize the charities’ inheritance while anticipating a challenge from her daughter, she could have included a provision for her daughter in the Will. This provision could have addressed the daughter’s maintenance needs, potentially reducing the likelihood or success of a challenge.
Potential Solution
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.
Lifetime Gifts and Use of Trusts
Another way to reduce the risk of challenges to your estate plan is to make gifts during your lifetime. These gifts are generally harder to overturn than a Will, unless there’s evidence of undue influence, pressure, or lack of capacity when making them. This strategy allows you to distribute assets while potentially minimizing future disputes.
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, and bankruptcy of beneficiaries may mean that the property does not go where you intended
3. Caution: Gifts made to avoid paying care fees or qualifying for benefits can be challenged by authorities. This applies even years later, as there’s no time limit on such claims
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.
Our Advice
If you are considering gifts to a charity, please get in touch. We can liaise with the specialist departments at the charities to help guide you through this process.
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.