Grounds for contesting a Will

Grounds for contesting a Will

The loss of a loved one is an emotionally distressing time but with the value of estates increasing and becoming ever more complex it is no surprise there has been a significant increase in the number of inheritance disputes with several high-profile challenges being reported by the press recently. 

Will Disputes

English law is relatively unusual in recognising the concept of testamentary freedom; other jurisdictions have fixed heirship rules and govern how an individual’s estate will pass. However, this does not mean Wills under English law are exempt from challenge.

There are many examples of challenges to Wills that can be cited. These range from the technical (the Will was not properly executed) to challenges that the Will does not make reasonable financial provision for those to whom the deceased owed an obligation.

Here are just a few common challenges to Wills:

  1. The Will has not been properly executed;
  2. The deceased did not have the mental capacity to execute the Will;
  3. Lack of knowledge and approval;
  4. Undue influence;
  5. Fraud

The Will has not been properly executed

A challenge to a Will on this ground occurs when the legal formalities for making a Will are not observed.

The standard formalities for executing a Will are set out in section 9 of the Wills Act 1837 and these include:

  • The Will must be in writing and must have been signed by the deceased (or another could have signed it but it must have been in the presence of the deceased and at their clear direction)
  • The deceased must have signed it with the intention of creating a valid Will;
  • The signature must have been made or acknowledged in the presence of at least two witnesses present at the same time; and
  • Each witness must have signed the Will in the presence of the deceased.

If any of the above are not met, the Will may be invalid.

Mental Capacity

A person must be of sound mind when making a Will. If a person does not have the mental capacity at the time of execution the Will may be the subject of challenge.

Lack of knowledge and approval

The deceased must have been aware of the content of their Will. If it can be established the deceased did not know the content or approve the content of their Will it is open to challenge.

Where a Will was executed by the deceased correctly and provided the deceased had the necessary mental capacity then knowledge and approval will be presumed.

However, issues of knowledge and approval can arise for certain categories of persons and in these circumstances the Court will require sufficient evidence to prove they understood and approved the content of their Will. This includes, for example, those who are blind, deaf or illiterate.

Similarly, where a Will has been executed in circumstances which give rise to suspicion the Court will want evidence to dispel any doubt. Each case will turn on its fact but examples of situations which may excite the suspicions of the Court are:

  • where the terms of the deceased’s Will do not correspond with what they said to others about their estate after its execution;
  • where the deceased had comprehension difficulties and/or English is not their first language;
  • the execution of the Will was not supervised by a solicitor

Undue Influence

A challenge to a Will on the grounds of undue influence will occur when the deceased was coerced into making a Will they do not wish to make. The coercion can take the form of threats and manipulation as well as physical harm.

In cases of a Will there is no presumption of undue influence and to prove undue influence there must be clear evidence. The bar for establishing undue influence is, therefore, a high one and whilst not impossible successful challenges are rare.

Fraud

If the true intentions of the deceased are not contained within the Will it may be possible to challenge the Will on the ground of fraud.

Examples of fraud include circumstances where somebody else impersonated the deceased in order to execute a Will or where the deceased was deceived into making a Will on certain terms based on a false premise.

Unlike undue influence fraud does not involve a degree of coercion but, like undue influence, fraud can be difficult to prove not least of all because the deceased will not be able to give evidence.

Contesting a Will

To try to avoid any disputes it is advisable to make sure your Will is prepared by an experienced solicitor and that it is kept up-to-date.

However, disputes over Wills do and will arise and if you feel that you have grounds to challenge a Will then it is important to act quickly before the estate is distributed and because certain challenges are subject to strict time limits.

Colman Coyle has considerable experience in advising in relation to the preparation of Wills and experience dealing with inheritance disputes.

 

If you would like to discuss any of the issues raised here, please contact Adam Palmer on +44 (0)207 354 3000 or adam.palmer@colmancoyle.com

 

Re-marriage, stepchildren and inheritance

Re-marriage, stepchildren and inheritance

A recent article in the Sunday Times highlighted some of the very real problems that can arise over inheritances and family wealth as the number of “blended” families rises. 

If you enter a second relationship or have children from multiple relationships, then issues can arise as to how to benefit everyone on your death.  This is even more of an issue where you have stepchildren involved or co-habiting couples.  It is not often appreciated that re-marrying will invalidate a previous will, which can lead to unforeseen problems and potentially expensive litigation at a later date. 

Not doing anything to address these problems, and relying on things to be sorted out after your death, is not really a solution, as the statutory intestacy rules that apply when someone dies without leaving a will can be arbitrary and will not necessarily take into account different family circumstances. For example, an unmarried partner or a stepchild who has not been adopted cannot benefit under the intestacy rules.

With this in mind, the key to ensuring that your wishes are followed and that the people you wish to inherit do eventually benefit, is to ensure that you have a properly drafted will drawn up and that it is kept under regular review.  Proper planning is the key to ensuring that wider family circumstances can be taken into account and a way of benefiting everyone found. 

Colman Coyle has considerable experience in advising in relation to lifetime succession planning and the preparation of wills. If you would like to discuss the issues raised here, please contact Patrick Green on +44 (0)207 354 3000 or Patrick.green@colmancoyle.com.

Patrick Green

Patrick Green

Senior Associate

Financial decision making and young people

Financial decision making and young people

There has been considerable publicity recently regarding the very real difficulties many families are having in accessing child trust funds, where the child turns 18 but is unable to make decisions for themselves. 

Once a child turns 18, legally they become an adult and have the responsibility to make their own decisions.  As a consequence, no one else has the right to make decisions for them.  This includes parents. 

The Office of the Public Guardian has now issued an information pack to help parents and carers make financial decisions for young people.  Often the only option is for an application to be made to the Court of Protection for a parent or other family member to be appointed as a deputy so as to manage the young person’s finances on a long-term basis. However, the process of applying for a deputyship can take a long time and involved legal and Court fees.

Colman Coyle has considerable experience in advising in relation to these issues, preparation of powers of attorney and Court of Protection applications. If you would like to discuss the issues raised here, please contact Patrick Green on +44 (0)207 354 3000 or Patrick.green@colmancoyle.com.

Patrick Green

Patrick Green

Senior Associate

The Budget and Inheritance Tax 

The Budget and Inheritance Tax 

The Chancellor unveiled his budget on 15th March but from the point of view of inheritance tax and estate planning there was no new announcements.

It had been announced in the 2022 Autumn Statement that the inheritance tax thresholds would remain at their current levels until April 2028 and so this gives some clarity as to the position over the next few years.

On that basis it is worth summarising some key points.

For a married couple or those in a civil partnership, they have inheritance tax allowances of up to £1,000,000 between them available on death.  With this in mind, it would be important to ensure that your wills are up to date so as to maximise the use of these allowances.  This is particularly the case where one member of the couple had a previous marriage or civil partnership that ended on death.  If that is the case, there is the possibility of bringing in the deceased’s allowances too and so if this may be relevant to you, it would be important to take advice.

There are still steps that can be taken during someone’s lifetime to mitigate a potential inheritance tax liability.  Gifts can be made during someone’s lifetime to take into account their annual inheritance tax exemption.  Another exemption that tends to get overlooked is gifts out of surplus income, whereby, an individual can make a gift for inheritance tax purposes of any amount from their surplus income, but it is important to take advice on making this type of gift to ensure that it is recorded properly.

Various other lifetime exemptions are also available, including gifts in consideration of marriage or civil partnership, which again is an exemption which is often overlooked.  You can make a gift to either or both parties to the marriage/civil partnership which is exempt from inheritance tax, with the actual amount that is exempt depending on your relationship to the couple.

Again, it would be sensible to take advice on this and it should be noted that these exemptions can all be combined with each other so that relatively significant tax savings can be made over the course of time if gifts are properly planned.

Colman Coyle has considerable experience in advising in relation to lifetime tax planning and the preparation of wills and related issues and if you would like to discuss the issues raised here, please contact Patrick Green on 0044 0207 354 3000 or Patrick.green@colmancoyle.com.

Patrick Green

Patrick Green

Senior Associate

Successful collaboration between two IR Global members from UK – London based law firm Colman Coyle Solicitors and Michael Parkinson of UK accountancy firm Barnes Roffe LLP saves the client a seven figure sum in tax

Successful collaboration between two IR Global members from UK – London based law firm Colman Coyle Solicitors and Michael Parkinson of UK accountancy firm Barnes Roffe LLP saves the client a seven figure sum in tax

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On referral of a fellow IR Global member Michael Parkinson of a prominent UK accountancy firm Barnes Roffe LLP – Colman Coyle’s Corporate team were initially instructed in relation to a management buy out of a family business in the UK.  Some of the shares in the UK company were owned by a family trust but following the input from Colman Coyle’s Private Client team, it transpired that due to the wording of the trust, which had been set up some time ago, and the transfer of shares at the time, there would have been considerable adverse tax consequences for the family if matters had been left as they were.

As a result, Colman Coyle’s Litigation team were able to successfully apply to the UK Court for the original transfer of the shares into the trust to be “rescinded” or set aside, saving the family a seven figure sum in tax.

Colman Coyle has considerable expertise and experience in relation to working with accountants and tax advisers on various corporate matters, family businesses, trust issues and related Court applications and this particular case illustrates the way the  different departments in the firm work together to provide an integrated service for clients, identifying problems and overcoming them and it is yet another example of a successful collaboration between the IR Global members.

If you would like to discuss the issues raised here, please contact either Oksana Howard oksana.howard@colmancoyle.com or Patrick Green patrick.green@colmancoyle.com on +44 (0)20 7354 3000.

Patrick Green guest speaker at Wellcome Collection Musuem for Marie Curie

Patrick Green guest speaker at Wellcome Collection Musuem for Marie Curie

Patrick Green was delighted to once again be invited by Marie Curie to discuss a wide range of key issues with wills, inheritance tax, charitable legacies and deeds of variation.

The event took place at the Wellcome Collection musuem in Euston on Friday 20 May 2022.

Patrick received outstanding praise, with one guest commenting “I did not realise we could give more to charity but my children still receive the same and will therefore be amending my will to reflect that”.

Colman Coyle are pleased to work with charities and not for profit organisations. We have been pleased to assist Marie Curie with the “Gift for the Future” events taking place in London.

Colman Coyle has considerable experience in advising in relation to the preparation of wills and related areas and if you would like to discuss, please contact Patrick Green on +44 (0)20 7354 3000 or patrick.green@colmancoyle.com.

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