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Beware of the Disappointed Beneficiary 21/9/12

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Whilst everyone has the right to leave their money to whoever they wish in their Will, it should always be remembered that relatives may have the legal right to contest your wishes.

Wills can be challenged and declared invalid for a number of reasons and Claimants have additional rights available under the Inheritance (Provision for Family and Dependants) Act 1975.

1. Forgery or fraud – When farmer Leonard Supple died, his last Will purported to leave the bulk of his £18 million estate to his lovechild, with a gift of only £100.00 per year to his son until he reached the age of 70. However, when he saw his father’s Will, the son spotted that the signature bore little resemblance to the familiar signature he knew. In the resulting Court case, the Will was found to be a forgery. However, as there was no previous Will, this meant that Mr Supple had died intestate and despite facing charges of perjury and fraud, his daughter could still potentially inherit around £9 million under the intestacy laws.

2. Undue Influence – This is when a third party is considered to have had excessive influence on the person making the Will. The challenge on this ground is much less likely to succeed if the Will has been properly prepared by a lawyer.

3. Testamentary Capacity – If it can be shown the Will writer did not understand they were making a Will, did not appreciate what their assets consisted of or consider properly to whom they may owe a moral duty to include in their Will, then a claim for lack of testamentary capacity may succeed. Again, a lawyer will take all proper steps to ensure these points are considered and if necessary, will ask the Testator to undergo a capacity test.

4. Knowledge and Approval – The Will may be set aside if the Court is satisfied that the Testator did not understand its implications. A lawyer will go through the Will in detail to ensure that the person making it fully understands the consequences of it.

5. Due Execution – There are very strict rules about how Wills should be signed and witnessed and failure to comply with these can result in the Will being set aside.

If a Will is successfully challenged and there is no previous valid Will to revert to, then the intestacy rules will apply. In other words, the estate will be distributed as if no Will had ever been made. This can create a whole new set of problems. Under the current law, a surviving spouse or civil partner will only receive the first £250,000.00 of the estate. The balance is split equally between the spouse and any children with the spouse only receiving the interest on their half, not the capital. This figure is not calculated just on the basis of any cash assets. The value of the family home is included in the calculation.

Inheritance (Provision for Family and Dependants) Act 1975

This states that everyone has a moral obligation to provide for a spouse, children or other dependants that they have supported in some way for at least two years prior to their death. In some cases, this can include ex-partners and mistresses.

A high profile recent case was that of Ilott v Mitson. The deceased left an estate of £486,000.00 when she died in 2004 and the bulk of her estate was left to the Blue Cross Animal Welfare Society. Her Will made no provision for her only child, from whom she had been estranged for many years. The daughter was fit and healthy and had not been supported by her mother for many years. She lived on a modest income with her husband and five children and chose not to work.

The mother had left two side letters with her Will, explaining why she had left nothing to her daughter and expressly instructing her Executors to defend any claim she may bring against the estate.

At the first hearing, the Court awarded the daughter £50,000.00. An appeal to the High Court by the charity resulted in that Order being set aside and a subsequent appeal by the daughter to the Court of Appeal, led to it being reinstated, subject to her paying the costs of the Blue Cross from the £50,000.00. The daughter then appealed against the amount of the award, seeking a higher payment.

Some five years after Mrs Mitson’s death, the matter was still before the Court and thousands of pounds had been spent on costs.

Here at A.H Brooks & Co, our experienced friendly team will guide you through the potential pitfalls to ensure that your estate goes to the people you want it to.
 

 

For further information contact Gill Harrison on 01538 383201 or email gillharrison@ahbrooks.co.uk

 
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