How Can You Avoid Family Disputes Over Your Will?

So, you’ve made a Will that clearly states who should inherit what, and all your paperwork is in order. However, family circumstances have recently changed, so you want to update your Will, but you’re concerned that your plans may upset those close to you.

Who should inherit what? What was promised? What is fair?

It’s no surprise that there’s been a sharp increase in disputes over Wills in recent years. Soaring property prices mean estates are worth more, so there’s more at stake. People living longer sometimes provoke families to question an individual’s capacity when their Will is made. And changes in a family’s structure, including the conflicting needs of blended families and cohabiting couples, often create arguments over inheritance.

Without a doubt, arguments over inheritance damage family relationships; how can you avoid family disputes and ensure your wishes are fulfilled?

1. Your Will Must Be Valid & Witnessed Correctly

Your Will must comply with the terms of the Wills Act 1837. In practice, this means your Will must be:

in writing
signed by you
witnessed by two people (to avoid being accused of unfair influence, it’s advisable not to ask an executor or beneficiary)

Finally, it’s crucial that you have the mental capacity to make your Will and understand the effect of the terms of your Will.

2. Your Will Must Be Clear & Unambiguous

The more precise you are, the better. To avoid ambiguity, you should get professional advice.

3. Your Will Must Be Up-to-Date

Ensure the terms of your Will are appropriate. Simple mirror Wills aren’t usually suitable if you’ve remarried or are in a second relationship. Challenges by children from a previous relationship who have been left out of a Will are common. Whilst disinheriting your children may not be intentional, you risk this happening if your Will isn’t updated correctly.

4. Consider Inheritance Act (1975) Claims

In updating your Will, you may want to exclude someone close to you from inheriting. You are entirely within your rights to do so, but disinheriting a family member can have consequences.

Making some provision for a person eligible to claim your estate is the better option. Inheritance Act claims are rarely straightforward and can leave those you care most about with an expensive, drawn-out, and distressing legal dispute to deal with.

Including a clause (known as a forfeiture clause) that prevents the person from receiving a (small) inheritance, provided they don’t challenge the Will, is worthwhile.

5. Deal With Property or Assets Abroad

How you deal with your overseas assets depends on the country. In some cases, it may be possible to apply the law of England & Wales when choosing who inherits. This can provide greater flexibility when drawing up your Will. However, some countries (including France) have ‘forced heirship’ rules. This means you can’t disinherit your children or other nearest relatives. In this case, you should consult a local lawyer to discuss options for drawing up a separate Will to handle your overseas property.

6. Explore The Use of Trusts

Discretionary and secret trusts can be used if you are worried about arguments over the distribution of your estate. Your chosen trustees (who can also be your executors) look after the assets held in the trust for the benefit of others. Often used to provide for children or vulnerable adults in a Will, you can also give your trustees the discretion to distribute your estate to additional beneficiaries after your death. In certain circumstances, other beneficiaries or financial distributions your trustees make can then be private.

Outside the advantage of confidentiality, there are various pros and cons to setting up discretionary trusts in your Will. If you consider using this structure, you must take specialist legal advice.

7. Choose Your Executor & Trustees Carefully

Administering an estate involves a lot of paper, financial and tax work. It’s an important role that can often be challenging and time-consuming. You must ensure those you appoint know what’s expected, including potential pitfalls. So, before you decide, consider the benefits of choosing a professional.

8. Leave a Letter of Wishes

Leaving an explanatory letter for your executor(s) can be a helpful way to explain why you’ve chosen one beneficiary over another. This letter can be private, include a list of specific items (rather than include them all in your Will) and need only be disclosed to your trustees on your death. However, the letter does not replace the Will and is not a legally binding document. So, ask for professional input to ensure everything is clear and your letter doesn’t provide disappointed beneficiaries with reasons to challenge the terms of your Will.

9. Talk to Your Family

Most inheritance disputes centre around someone feeling they haven’t received their fair share. Being open about your plans may help your family to understand your thinking. Honesty can create less disharmony. If a frank conversation is likely to cause dissent, keeping your wishes private is probably better.

10. Take Specialist Legal Advice

The best way to ensure your wishes are fulfilled is to take specialist legal advice. Your lawyer will structure your Will to achieve the best overall outcome for you and those you care about. DIY Wills can be tempting, but a ‘one-size-fits-all’ service is no substitute for a face-to-face discussion with someone with years of specialist legal training and experience.

For more information about making a Will or to arrange an appointment, please get in touch with us. We’re here to help.

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.