It’s that time for the battle of the Christmas TV adverts! Whether you are excitedly counting down the days or shaking your head in despair at the Christmas creep of merchandising, there are only two and a half more weeks until the big day of expectation is upon us. In the world of advertising there will be snow, a trampolining dog, and your happy family sitting around the dinner table for a feast fit for a King - no doubt with gravy. Cue tenuous link to the 1984 My Christmas Oxo advert starring Lynda Bellingham and the topic of this blog!
In December 2013, Lynda Bellingham was admitted to hospital for emergency surgery and was given a 50/50 chance of survival. Lynda survived, and approximately two weeks later she signed a new Will appointing her husband as the Executor. Lynda sadly lost her life to bowel cancer in October 2014 leaving two sons and her husband.
It has been reported that Lynda left her entire estate to her husband trusting that her sons would be adequately provided for. Her sons have disclosed that they have only received gifts amounting to £750 each, and that her youngest son was forced to move out of the family home. They have accused their stepfather of not following their mother’s wishes to look after them financially, and claim that their mother could not have understood the content of her Will when she signed it as she was under heavy medication. Lynda’s sons are now taking legal action to challenge their mother’s Will.
Sadly, this is not an uncommon story. Disputes over Wills have increased. The nuclear family shown in the those Oxo adverts does not reflect modern family dynamics with divorce, second marriages, stepchildren and half-brothers and sisters now common. Coupled with rising property prices, more estates are now worth contesting.
We do not know on what basis Lynda’s sons are challenging her Will, but broadly speaking there are two bases upon which a Will can be challenged - the validity of the Will, and/or that the Will does not make ‘reasonable financial provision’.
A Will must fulfill certain legal and procedural requirements in order to be legally valid. Strong evidence must be produced to convince the Court that the Will is invalid. Even if a Will is valid, provided that the deceased died domiciled in England and Wales, certain relatives and dependants can challenge the division of the estate by claiming under the Inheritance (Provision for Family and Dependants) Act 1975 that the Will did not make ‘reasonable financial provision’ for them.
The categories of those who can make a claim are:
- a spouse or civil partner;
- a former spouse or civil partner who has not remarried or registered a new civil partnership (provided a court order was not made at the time of the separation that specifically prohibits them from bringing such a claim);
- any person cohabitating with the deceased as ‘husband and wife’ for at least two years immediately prior to the deceased's death;
- a child of the deceased;
- a person who is not the child of the deceased but is treated as a ‘child of the family’;
- any other person who immediately prior to the deceased's death was being maintained by the deceased.
Claims of this nature can be protracted, expensive and distressing for all concerned. You can, however, take steps to reduce the risk of dispute over your estate:
- Make a Will and keep it up to date
According to statistics, approximately two thirds of the UK population will die without a valid Will in place. Where there is no valid Will, an estate is distributed in accordance with the Intestacy Rules. Ultimately this will mean that you lose control over the distribution of your estate, and the result may not be what you would have intended.
The best way to ensure that your wishes are fulfilled is to make a Will. This avoids any uncertainty about what you want to happen to your assets after your death. It is also important to update your Will if there are any changes in your circumstances, such as a new partner.
- Appoint more than one Executor
The appointment of at least two Executors ensures that there is someone else to keep a check on the actions of the other Executor.
- Estate planning
If you have concerns about a beneficiary’s ability to manage an inheritance due to their age, mental capacity or financial circumstances, rather than making no provision for them in your Will and trusting a third party to financially support them, there are other options such as creating a trust.
If you do wish to exclude a close family member from your Will and anticipate that they might react angrily, you may want to consider leaving them a gift in your Will subject to a forfeiture clause. These clauses usually stipulate that a challenge of the Will's contents will result in the beneficiary forfeiting what would have been their entitlement.
- Write a detailed letter of explanation
These type of letters are often called letter of wishes and can remain confidential until after your death. They are not legally binding, but can be a useful tool for guiding your executors in how to carry out your wishes, to explain what your intentions are, or why you made a certain decision, such as excluding a family member from your Will. If your Will is challenged, your letter of wishes can be relied upon in evidence of your intentions.
- Consider discussing your Will with your beneficiaries
Your Will is confidential and nobody has the right to the know the content until after your death, however expectation and disappointment often play a key part in Will disputes. Making sure that everyone understands your wishes can help to ensure that they are not misinterpreted, and any challenges or issues can be dealt with while you are still alive.
- Speak to a Solicitor
DIY kits and homemade Wills frequently result in disputes due to a lack of understanding. In the long run the cheaper option could be a false economy. Professional advice will ensure that you include appropriate provisions in your Will to protect your assets and your beneficiaries, that you understand all of your options and the potential consequences of your decisions, and most importantly that your Will actually reflects your wishes.