How Not To Be Involved In An Inheritance Dispute

We are regularly approached by clients who are affected by events after the death of a close family member or friend. Only then does it become apparent that there may be issues concerning the distribution of the estate or whether a Will is valid.

The opportunity to sit down and discuss the matter with the most important person involved has long since passed. Such disputes are becoming increasingly common and are entirely dependent upon their unique circumstances, but what they all have in common is such disputes inevitably incur some delay and expense.

With the increase in property prices and the complexity of family dynamics with second marriages, there is a growing tendency to consider making a claim against a deceased person’s estate based, to some extent, on an assumption of receiving ‘something’.

So, what can be done to forestall such claims? Prevention is better than cure, and there are steps which can be taken to lessen the possibility of this kind of dispute arising in the first place.

Avoiding an inheritance dispute

Discussing the inevitable

It sounds a little morbid, but facing and discussing the one event which awaits us all (and in turn what we wish to do with our estate with those affected) is a good start.

In an ideal world, those discussions can make a lot of sense and close down misunderstandings or doubts about whether the testator fully appreciated the effects of their decisions. Hearing an explanation directly from the testator before their death can be enough to avert a dispute.

It might not be easy for either the testator or those affected to learn why they have received far less (or perhaps nothing), but knowing it was their wish and the rationale behind it might lessen the feelings of confusion and bewilderment that sometimes act as the seeds for later legal action.

Get proper advice

Obtaining professional legal advice in respect of what happens to your estate is always worthwhile. There are many potential pitfalls with homemade Wills, particularly concerning a failure to execute the Will correctly or perhaps lurking in the background, claims of bias and undue influence.

Getting advice from a solicitor who can give guidance not only on tax-efficient Wills but also advice on steps to mitigate against any future claims is money well spent.

It is also part of a solicitor’s duty to ensure the testator has the requisite testamentary capacity to make the Will. Where a solicitor has prepared the Will and asked the right questions (and particularly in the case of elderly testators, obtained a medical report confirming capacity) this will go some way to reducing the possibility of a successful Will challenge.

The solicitor will also be able to give the testator valuable advice, which might also diminish the possibility of a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

For unmarried testators, the stakes for their surviving partners are potentially far higher. The partner of an unmarried testator who leaves no valid Will is, on the face of it, entitled to nothing. A potentially expensive and lengthy claim under the Inheritance Act may well follow. This could easily be avoided by executing an up-to-date Will.

Updating your Will

It is important to update your Will when key events take place. This can include getting separated or divorced, getting married (which automatically revokes any Will you made before), having a child or moving house.

But it’s not always about who gets what. Important considerations concerning guardianship may be as important as any financial consequences of the Will. And it’s a good idea to make a change if circumstances alter, e.g. if the guardian moves abroad or an executor dies.

It is also important to update your Will if the value of your assets drastically changes, or a cause or charity has a greater bearing on you down the line.

To take account of these changes, it is prudent to review the terms of your Will every five years. In doing so, after your death ,it can be argued you continued to actively monitor changes in your life and those around you.

Charities

With regards to charities, if you want to bequeath a significant sum in your Will to a certain cause, it can make good sense to demonstrate some kind of connection to that charity during your lifetime.

Where you have property, make a Will

For those lucky enough to have holiday homes, foreign accounts and property in another jurisdiction, a local Will is a must. To some extent, this may be nullified by local rules concerning heirship, but local advice from a reputable and knowledgeable lawyer is money well spent.

Thinking about events ahead is never a bad idea, and that approach also applies to what happens after our death.