Wealden Times | WT183 | May 2017 | Restoration & New Build supplement inside

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What’s the point in
making a will?
There have been a number of high
profile inheritance cases recently
involving children challenging
their parents’ wills - leaving parents
wondering if there is any point in
making a will and children possibly
believing it is now simple to overturn
whatever inheritance a parent may, or
may not, have left them. Here Myles
McIntosh, head of private client at law
firm Cripps, explains the issues.
For the first time this particular issue
reached the Supreme Court in March
2017; a case involving a daughter
whose mother disinherited her after
she ran away from home to live with a
boyfriend she didn’t approve of. The
daughter was cut out of her will, instead
gifting her estate to several charities.
After her death the daughter went to
court and successfully claimed that her
mother’s will was unreasonable and
received £50,000. She was not happy
with the amount awarded and
appealed. The Court of Appeal
significantly increased the sum to
£143,000 which as a result, meant that
the charities received less.
The case attracted nationwide interest
and seemed to be a ‘game changer’, the
press implying that it marked a moment
in time when making wills became
redundant, when each of us lost the
ability to decide to whom we wanted to
leave our estates on our death.
The charities appealed the decision
and so the case went to the Supreme
Court. It reversed the Court of Appeal
decision so that while reducing the
amount she was entitled to, it
reaffirmed that she was entitled to
something from the estate,
notwithstanding the facts of her
estrangement from her mother.
So where does that leave those
people making wills and those who
are considering whether to
challenge a will?
There are still many reasons for making
a will. A will tells everyone what you
want to happen to your money and
possessions. By making one you still
have control. You can choose your own
executors and appoint guardians to
look after your children if they are
under 18. If you remarry, a will can
ensure any children from a previous
marriage get a share of your estate. It
can also significantly reduce
inheritance tax that might otherwise be
payable as it is an excellent tool for tax
planning purposes.
If you don’t make a will you cannot
control how your estate is divided or
who benefits from it. Without a will in
place, unmarried partners may not
receive anything from the estate and if
you are married or in a civil
partnership, your partner may not
receive as much as you would have
intended.
For those who wish to challenge a will, it
can be disputed on the grounds that it is
invalid (for example it was not signed in
the presence of two witnesses), or
because the person disputing it has not
been left any or sufficient provision
under the terms of the will. This was the
gist of the case above. However, please
note that as always, cases turn on facts
which are unique. A child who is left,
say, far less than a sibling might not be
able to overturn the will if his or her
behaviour justified being largely
disinherited. That can include lifestyle
choices such as choosing not to work.
Several other will challenges have failed
this year for precisely those reasons.
A will might also be invalid if the testator
did not have the required mental
capacity to make the will, or for example,
was pressurised into making the will and
gifting someone part of the estate.
If a person thinks they should have been
left a share (or all) of someone’s estate
they can make a claim if they meet a
narrow eligibility test. This includes
someone who was a spouse or child of
the testator, or they may have lived with
them for at least two years prior to his or
her death, or even that they were being
provided for by the deceased
immediately prior to death.
Myles is a council member of the
Association of Contentious Trust and
Probate Specialists and if you would
like more information he can be
contacted on 01892 506136 or email
myles.mcintosh@cripps.co.uk
Cripps is a key regional law firm serving clients
nationally and internationally from offices in Kent
and London. Recognised countrywide for both its
commercial and private client work, the firm focuses
on the real estate sector, entrepreneurial businesses
and wealthier families. Cripps is a member of
Marcalliance, an international alliance of
independent law firms
www.cripps.co.uk @crippslaw This article gives examples and is intended for general guidance only