One of the unique features of the English Laws of Inheritance is that everyone is free to leave their estate to whomsoever they wish. Unlike many countries that have forced heirship rules over part or all of an estate, no such rules apply in England and Wales. However, in certain circumstances, your final Will and Testamentary Disposition might be challenged.
The First Myth: My family know my wishes – I don’t need to do anything else
As Mark Twain wrote “The lack of money is the root of all evil”. After nearly 40 years working in the legal field, I can attest that Mark Twain’s quote has proved very accurate. I have often been told by my clients that, “My family know my wishes” or “We are a close family, my children will never argue over money”. Sadly, both these statements have proven to be wide of the mark. Regrettably, I have witnessed the closest family being torn apart after the death of the parents and, invariably, it is due to arguments over money. For example, I have often found myself hearing a variation of, “Mum always told me the house will come to me and not my siblings as they have their own houses”.
The truth is that unless you have made a Will that clearly sets out your wishes, family arguments will invariably follow. And even if you leave a Will, if your estate does not seem to be distributed fairly by your children and/or other dependents, there is a chance that a disgruntled child will bring a claim despite your stated your wishes.
The Second Myth: No one can challenge my wishes, as set out in my Will
Even though in English Law you are entitled to leave your estate to be distributed as you wish, if you decide to disinherit one or more of your children, or indeed another person who was dependent upon you during your lifetime, there is a possibility that they will be able to bring a claim against your estate. Such claims are notoriously expensive and can seriously reduce the size of your estate as the costs of such a claim are usually awarded to come out of the estate.
Additionally, if the estate has not been left to your children equally, a disgruntled child might also bring a claim against the estate.
A “dependent” in this context, this means someone to whom, during your lifetime, you were paying money to help them with their living expenses. If you do not make provision for their continued support from your estate, they could also bring a claim against your estate.
The Third Myth – My child is estranged, they will never want any part of my estate
This is incorrect. Any child, no matter how estranged they were from you during your lifetime, can bring a claim against your estate if they are not included as a beneficiary under the terms of your Will or you did not make adequate provision for them, without setting out your reasons for doing so.
Many times, I have come across a situation where a child who may not have spoken to their parent for a decade or more, suddenly returns to the scene after your death expecting to receive “their share”.
The Solution – Prepare a detailed statement or letter
Whilst there can never be ever be a 100% guarantee that a challenge will not be made to your Will, you can increase your levels of assurance by leaving a detailed letter addressed to your executors which can be shown to the Court, if necessary. This will assist a judge with understanding your reasoning and why you arranged your affairs in the way that way you did.
This is important because a judge will always consider a testator’s (the person who made the will) reasoning. However, if there is nothing written down, a judge can only hear third party evidence, which will not carry as much evidential weight.
Although it might be painful for an individual to write such a letter, the more details that you can provide by way of a detailed explanation, will assist the Court if the matter becomes contested. If you do not provide an explanation, a judge will have no evidence from you before him or her as to why you acted as you did.
Even with a detailed letter, a judge may not agree with your rationale, and nothing can fetter his or her discretion in the matter, but without such an explanation your wishes may not even be taken into account at all, and the provisions in your Will may not be implemented.
As ever, the devil is in the detail. If you are minded, for very good and justifiable reasons to treat your children unequally, you must ensure that you have prepared a very detailed statement or letter addressed to your executors setting out your reasons.
For more information about the drafting your Will and a detailed letter if necessary, please contact a member of our Private Wealth Department: Rhea Rughani, Colin Glass or Vincenzo Mazzone.
The information contained in this article is general guidance only. The application and impact of laws can vary widely depending on the specific facts involved. The information in this article is provided with the understanding that the authors and presenters are not giving legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with professional legal, tax or other competent advisers. Before making any decision or taking any action, you should consult a Child & Child professional.