BE VIGILANT: HOW TO MINIMISE CHALLENGES TO A WILL OR AN ESTATE
In the previous two articles in this three part series, I have discussed the ways in which File Attendance Notes come into use with regard to mental capacity if ever there is a challenge of testamentary capacity and also when applying for the Grant of Representation.
Whilst it also helpful to have these at the forefront of your minds, one should also be mindful of the importance of File Attendance Notes in relation to claims that are made under the Inheritance (Provision for Family and Dependants) Act 1975. Moreover, if you do not have detailed full File Attendance Notes, even the wisest and most diligent Will drafter will find it difficult to start arguing against any assertions of Undue Influence!
Firstly, with regard to the Inheritance (Provision for Family and Dependants) Act 1975, many Will drafters will be aware of the existence of this Act but I would go one step further, and suggest that a closer look at the finer details should be taken; specifically who the eligible beneficiaries are and what are the danger signals (and accordingly the basis) upon which they can claim under the Act.
The section of the Act relevant to those writing Wills is Section 1(1) which details the eligible claimants under the Act; namely:
- Spouse or civil partner
- Former spouse or civil partner who has not remarried
- A cohabitant, one who was living with the deceased in the same household as husband and wife or civil partners for 2 years immediately before the date of death
- Child of the deceased (Child is treated as “a child of the family’)
- Any other person who was maintained by the deceased a the date of death
If the testator is aware of the existence this Act and the fact that there may be a successful claim, a simple solution is to include that person in the Will to avoid difficulties once they have died.
There will be circumstances, however, when client is insistent on excluding family members, and provided you have informed the client of the danger of excluding such persons, you have fulfilled your duty. Kings Court can then deal with the claim by the family member once the testator has died.
So, make sure that you have a detailed File Attendance Note on the file stating the reasons why the testator does wish to exclude certain people. Some experts argue that it is prudent to include such a statement in the Will, and these may be taken into account by the court when assessing whether the claimant has a viable claim under the Act for reasonable financial provision. However that still does not mean that your File Attendance Notes will not be needed!
As you will be aware, Undue Influence in the context of a Will means coercion.
It is unfortunate but the reality is that testator’s are sometimes coerced into changing their Will and if the court is persuaded that the testator acted against their own freewill, the Will may be set aside.
In practice, it is appreciated that it may be difficult to spot coercion and is not always obvious. In order to combat this I would suggest that it is best practice in all circumstances to consider and document the following:
• ask yourself who is my client;
• question whether they are independent; and
• always insist on seeing your client on their own.
I do further appreciate that this may be difficult where you are taking instructions from a couple in respect of a mirror Wills.
Consider this example. Suellen is considering making a Will in favour of the local dogs home. Sandra, her civil partner, is very much the dominant partner, and is furious when she hears of Suellen’s intention. She tells her to make the Will in favour of her ‘or else’. Suellen complies. So has she been persuaded or coerced? It is not unnatural for spouses or civil partners to impress their claims, especially when they are in competition with the dogs home. Whilst, on the other hand, if the evidence points towards Suellen being entirely dominated by Sandra and very concerned by the threat or else the facts may point to coercion.
The test therefore to apply is whether the testator was led or driven? Testators are entitled to make decisions which may not appear rational but as long as those decisions are made by the testator using their own freewill then there will be no undue influence.
So be pro-active and don’t be afraid to ask the testator awkward questions. They are better asked whilst the testator is around to answer them and reflected in your File Attendance Note rather than those questions been speculated upon after death whilst you are standing in the witness box with counsel heavily questioning why you didn’t ask such questions or indeed why you did not insist on seeing the testator on their own.
In summary, I hope that the thread of the articles in this series have shown that there may be times in which the distribution of an estate may be challenged for any of or all of the reasons outlined and nothing can be done to prevent it. That said, there are certain steps that can be taken, pre-emptively to minimise the risks of a challenge, and or such challenge being successful.
Andrea Pierce is Head of Legal Services at Kings Court Trust Corporation. She can be contacted on 01225 787113 or email her on andrea.pierce@trustcorporation.com.