You probably already know how important it is to write a Will. Doing this is the only way to be certain that your estate would be dealt with according to your wishes in the event of your death.
Unfortunately, writing a Will isn’t always as simple as naming the people you would like to inherit your assets. There are all kinds of laws and legal precedents in place that mean you need to ensure you’ve been extremely clear about your intentions.
This is especially important if you’ve chosen not to leave an inheritance for a close family member who might naturally assume they’d be a beneficiary. For example, if you’d chosen for whatever reason to leave your entire estate to a friend rather than to your children, your solicitor would almost certainly recommend that you include a Letter of Wishes with your Will. This is a legal document which would clearly set out why you’d made that decision.
If you don’t take precautions to ensure your wishes are clear, you may be leaving your estate vulnerable to dispute.
What is reasonable provision?
The concept of reasonable provision is the idea that it’s necessary for someone to leave a reasonable financial provision in their Will for anyone who’s been financially dependent on them in the time leading up to their death.
This could include:
- A spouse or civil partner
- Children (including grown up children)
- A former spouse or civil partner who had not entered into a new marriage or civil partnership
- A romantic partner who had been living with the deceased for at least two years
- Someone who the deceased had treated as their child (including, but not limited to, adopted children, foster children and step-children)
- Someone who was being fully or partly maintained by the deceased
If you were to leave a Will which did not reasonably provide for anyone in your life who fulfilled one of these roles, that individual would be within their rights to dispute your Will after your death.
If this was to happen, it would mean that the person or organisation you had chosen to leave your estate to would have to go through a lengthy legal procedure and may be left with only part of the inheritance you bequeathed to them.
The case of H (deceased)  EWHC 1134 (Fam)
The High Court’s Family Division recently ruled on a case based on these principles. A 50-year-old woman chose to dispute her father’s Will because she believed he should have provided for her financial future.
In the Will in question, the deceased gentleman had left his entire estate to his wife, an 80-year-old woman, who is disabled and living in residential care. The estate was worth a total of £550,000. Though the gentleman had not been supporting his daughter financially for more than sixteen years before his death, she believed she had a right to receive an award from his estate.
The claimant in this case would not usually be seen as a candidate for a reasonable provision dispute, especially as she was known to have been near-estranged from her father for around a decade before his death. However, she has a long-term psychiatric illness which has left her with insufficient income to support herself and her children. Because of this, it was felt that she did have the right to challenge her lack of inheritance.
The claimant’s original request was for a provision of £600,000 or more from the estate, however this would total more than the value of the estate itself. Though she was successful in her challenge, she was awarded the much smaller sum of £139,000.
The court intended this financial award to cover psychiatric treatment for a period of three years and an additional amount to cover the shortfall in her living costs during this time. The court hoped that after the three years of treatment the claimant would be in significantly better health and would be able to financially support herself and her family again.
How can you make sure this isn’t an issue for you?
The best way to ensure you’re not leaving your Will open to Inheritance Act challenges is to discuss the matter openly and honestly with your solicitor. The better your solicitor is able to understand the whole situation, the better placed they’ll be to help you successfully navigate it.
When you work with a solicitor to write a Will, they’ll be able to tell you if they think anyone in your life may have the right to challenge it. If this is likely to be the case, they’ll also be able to make suggestions on how you can reduce the chance any challenge would be successful.
Depending on your circumstances, this may mean writing a Letter of Wishes to accompany the Will. Your solicitor may also think it appropriate to have a medical expert confirm in writing that they believe you had full mental capacity at the time of writing the Will.
The exact steps you’ll need to take to protect your Will from provision claims will depend on your personal circumstances.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support in:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like guidance about planning for the future, preparing to pass on your property to your loved ones, or on anything else covered in this blog, please do not hesitate to get in touch with us.