Writing a Will: A Tablet of Stone or a Movable Feast?

Writing a Will

Writing a will can be a momentous event. Not usually something that is undertaken lightly or casually. It is usually brought about by life events that cause reflection or a sudden appreciation that everything can and will change.

So, the thought that this precious ‘once in a lifetime’ document could be challenged or modified after your death could sound somewhat unnerving.

The most common challenge to a will is by a member of the family of the estate…

The Inheritance (Provision for Family and Dependents) Act 1975

This Act makes allowance for a court to vary and sometimes increase the distribution of the estate of a deceased person where the will fails to make adequate provision. This may be to any spouse, former spouse, child, child of the family or dependent of that person.

Why Make a Will?

If it is the case that wills are not necessarily permanently cast in stone why make one at all? Well, although the above act provides a mechanism for contesting a will it also incorporates various safeguards or tests that ensure the substantial wishes of the deceased are respected.

Qualifying Conditions

A claim under The Inheritance Act 1975 is not a ‘carte blanche’.

The Act is qualified and asks

  • Are you a qualifying person? This usually includes a spouse, a child of the deceased, a former spouse, someone living with the deceased for over two years or a person financially maintained by the deceased.
  • That potential beneficiaries will need to place evidence before the court designed to balance the needs of beneficiaries and claimants.
  • Is the claimant desiring ‘reasonable financial provision’ as opposed to the desire for a luxurious lifestyle?
  • That charities prove that the deceased was known as a donor already and that monies due from the estate had already been factored into projected costs.
  • Any claims will be viewed in the context of the original beneficiaries claim who are equally entitled to put their own evidence before the court.
  • Is the claim timely? The time limit for making a claim is 6 months from the date of probate being granted. The court can overrule these but only in exceptional circumstances.

Legal Costs

A further safeguard is that costs for any claims are incurred by the claimant except as agreed by the court and entirely at the court’s discretion. It would therefore be unwise to pursue a spurious or untenable claim.

Furthermore, claims require a witness statement being issued along with a comprehensive claim form. This in practice can take a considerable amount of time and effort and should be considered well in advance of any legal time deadlines that there may be.

Summary

Whilst it can be seen as troublesome that a will is not ‘set in stone’, this fact only usually serves as a technicality; all contesting claims are subject to rigorous limitations and there are qualifying provisions in the statute to this end. Qualifications include the relationship of the claimant to the deceased and that the claim has been made within a reasonable timeframe.