Simple mistakes can invalidate a Will or lead to family fall-outs. We highlight some of the main errors to avoid when making your own Will, and your options if you want to challenge someone else’s Will.
Research south of the border shows inheritance disputes reaching record highs in recent times. One reason posited for the growing number of disputes hitting the courts is families feeling the financial pinch as a result of Covid or the cost of living crisis. Another is that with families becoming more blended and/or widely dispersed, family members may not be fully aware of their rights or entitlement under a loved one’s Will.
Disputes regarding Wills can be highly specific and technical. They can also be emotionally difficult given that the catalyst of the dispute involves the death of a loved on. Whilst there is no sure way of preventing a Will dispute, it may be possible to reduce the risk of such a dispute arising by avoiding 5 common mistakes when drafting your Will.
1. Choice of executors
Perhaps the most common mistake is choosing an executor who is not competent to perform the role or not interested in doing it, or equally choosing multiple executors who cannot work together constructively.
Whilst it is not uncommon for family members to seek to have executors removed from office in practice it is very difficult to do. It is not enough to show that the executor has made mistakes but certain grounds must be established including that the executor has acted in a manner which is blatantly inappropriate in their role, or that there is an unacceptable conflict between the executor’s personal interests and their duties as executor.
2. Whereabouts unknown
Many people think their families will intuitively know where to find their Will, but would you know where your loved ones have put theirs? Or whether the one you find is their most recent one? The easy solution is to have your Will stored by your lawyer, keep your own copy in a safe place, and tell people about those arrangements.
3. Falling behind the times
Life events, such as marriage, separation, divorce, remarriage, having children and the death of an executor or beneficiary, generally require a Will to be updated. Some events invalidate your current Will; whereas with others your Will remains valid but may no longer suit your family circumstances (see our article on “Inheritance and Modern Families” for some examples of this).
One frequent issue is where parents leave a child (perhaps from an earlier relationship) out of a Will, without recognising their legal right to a share of the estate.
4. Capacity and influence
Sadly, the rising numbers of people with dementia and mental health issues mean we’re likely to see more questions being asked as to whether someone had ‘testamentary capacity’ when they executed their Will or indeed whether they had been influenced by another when doing so.
The fact that someone has dementia, for example, doesn’t stop them from making a legal Will but the right measures should be taken to ensure that it is valid. Where such steps aren’t taken it may be difficult to retrospectively prove that the individual had the requisite capacity to draft their Will and could result in court action being raised.
5. Textbook errors
Sadly, far too many people make textbook errors when drafting and executing their Wills. For example, they download a Will template from an online source which hasn’t been drafted in accordance with Scots law, or they have failed to sign their Will or have it witnessed properly. In each of these examples the Will could be deemed invalid.
Alternatively, many do not recognise the consequences of the contents of their Will to the effect their Will and the way their estate will be distributed does not represent their wishes. For example, failing to take account of different people’s legal rights, who could then potentially go on to make a claim against the estate.
Many of these issues crop up because people try to save costs which is of course understandable. However in practice the above errors can actually lead to higher costs for family members who may be required to raise a court action to resolve a dispute. In addition, it can lead to family conflict at a time where family ought to be supporting one another. Asking a solicitor to help you avoid these errors could therefore protect your loved ones from an expensive and stressful inheritance dispute.
Will disputes: try to dial down the tension
There are many scenarios where you might want to challenge a Will or the execution of a Will. You may have been left out of a Will, or not been giving the option to claim your legal rights. You may suspect that a relative, new partner or neighbour manipulated a loved one into making a Will (or changing one). A Will may have been poorly prepared, revoked or lost. Or the executors may appear to be performing their roles incompetently or unfairly. And so on and so forth – this list is certainly not exhaustive.
If you do feel uneasy about the contents or handling of a Will, there are plenty of legal remedies and solutions available to you.
The starting point is to talk to a lawyer. More often than not they can tell you where you stand from a legal point of view and what options are available to you (if any). In the first instance this should assist you in deciding whether to take action.
If you decide to take further action in relation to a Will dispute, your lawyer can provide you with more detail regarding the different options which may be available to you and explain the pros and cons of each option. Given the delicate nature around these types of disputes your lawyer will typically try and resolve any disputes through negotiation, rather than proceeding straight to court action. This approach can often be quicker, less expensive and less damaging to longer-term family relationships. For example, often with disputes, legal rights or professional negligence issues, an early letter from your lawyer to the executor, their advisors or the solicitor accused of professional negligence can quickly and effectively highlight the problems and open the doors for a solution.
With lost Wills, a lawyer can help you with the standard procedures for investigating how the Will was lost, putting together the relevant evidence, and taking the necessary steps with the court (known as a ‘proving the tenor’ action).
If a dispute can’t be resolved through negotiation, a good lawyer can guide you through the next steps with the courts, still looking to avoid delays and escalating costs.
Lynsey Kerr Partner, Private Client Services
Samantha Miller Solicitor, Dispute Resolution and Litigation
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