THE AVOIDANCE OF DOUBT: WILLS, CLARITY AND CONFLICT

Whether it’s sudden or following a long illness, the death of a loved one can create immense distress for those left behind.

The effects of all that very natural emotion can be compounded by disagreement among relatives and other dependents about what should happen to someone’s assets after they have passed away.

A will can offer sufficient clarity to overcome the potential for dispute.

However, the mere existence of a will does not entirely eliminate the prospect of a challenge to the terms by which the deceased may have intended their estate to be divided.

In contrast to countries which have regimes specifying how the process should be done, individuals drawing up a will in England and Wales are, of course, allowed to determine what they want to happen to their possessions – something referred to as ‘testamentary freedom’.

Even so, they are unable to prevent someone subsequently making a claim on their assets.

In fact, the most recent relevant legislation – the Inheritance (Provision for Family and Dependants) Act 1975 – sets out how people can contest a will if they believe they have been unfairly excluded from an inheritance (https://www.legislation.gov.uk/ukpga/1975/63).

The same provisions apply regardless of the size of an estate. Nevertheless, the possibility for dispute is perhaps greater when there is more at stake.

The High Court has ruled on one such notable issue in recent days.

Bill Reeves has successfully challenged a will drawn up in the name of his property entrepreneur father Kevin in 2014 (https://online-news.co.uk/news/victory-for-son-who-was-shut-out-in-100m-inheritance-row-by-manipulative-sister.html).

A judge ruled that the document had probably been “engineered” by one of Kevin Reeves’ daughters, Louise, in order to leave her a greater share of his £100 million fortune.

Instead of about £200,000 worth of his father’s personal effects, Bill Reeves now stands to inherit a much more substantial sum – reportedly, a sum of £27 million – under the terms of a previous will.

The High Court concluded that Louise had “unduly influenced” her father into changing that earlier will and had been involved in the drafting and approval of the new document despite standing to be the main beneficiary.

It is a case which will, no doubt, prompt fresh questions about the do’s and don’ts of will-writing.

To at least minimise the chances of a will being contested, the person making it (known as the ‘testator’) is advised to consider those who might benefit or wish to benefit from their estate.

That means not only weighing up their respective financial positions but their expectations of inheritance.

Given the potential for objection, decisions about omitting someone from a will should never be taken lightly. Demonstrating that they have at least been considered is one essential part of the process.

Another is the provision of a witness statement setting out in fuller fashion why a particular decision about reducing or removing an inheritance has been taken.

In the event of litigation and any resulting court hearings, these statements can be incredibly persuasive – evidence effectively from beyond the grave.

Will-writers also need to show that they have not been subjected to the sort of undue influence or coercion which the High Court concluded Louise Reeves had been guilty of.

Whereas will-writers are unregulated, solicitors including myself and my colleagues have to abide by strict professional codes of conduct and failing to do so can result in possible legal claims for negligence.

Furthermore, everyone at Private Client Solicitors is a member of the global body dealing those engaged in such matters – the Society of Trust and Estate Practitioners or STEP, for short.

Although it might, on the face of it, seem quite complex, making a will is very straightforward and it provides far more certainty than leaving things to chance.

The latter is a situation in which a large number of people in the UK might find themselves in if we take into account research by one financial management firm in 2020 which established that more than half of people had not made a will (https://www.canadalife.co.uk/news/31-million-uk-adults-don-t-have-a-will-in-place/).

In the absence of a will, the division of someone’s assets falls is dealt with by the rules of something known as intestacy.

Intestacy is far less clear-cut – especially, for example, for the growing number of men and women in England and Wales who choose to cohabit rather than marry – and only serves to aggravate the sense of loss which follows a death.

Even though it is impossible to completely avoid someone taking issue, putting a properly prepared will in place offers a greater likelihood of grief and not rancour following a bereavement.