Estate Disputes and How to Avoid Them
We all know the old proverbs – ‘prevention is better than cure’, ‘a stitch in time saves nine’, ‘don’t leave your estate administration to chance’ – well, maybe not the last one but it’s true nonetheless. Many people worry about family disputes arising after their death but is there anything we can do about that before the time comes? In short, yes there is!
1.Make a Will
It may seem obvious, but many people do not realise how important it is to put a well-drafted will in place. Without a will, your estate will be administered according to the rules of intestacy on your death, and this can lead to unwanted, and in some cases, unfair outcomes.
2. Be Open
When visiting a solicitor to make a will, be as honest as you can about your circumstances and your family history – if we don’t know all the facts, we cannot give you the best advice. Don’t be embarrassed, we have heard it (and sometimes even seen it) all.
3. Identify the Pitfalls
Your solicitor will work with you to identify circumstances which are likely to give rise to a dispute after your death. This can include situations such as: estrangements, unmarried partners, existing family rifts, or even cash gifts or loans made during your lifetime.
4. Offence is the Best Defence
Once you have identified the potential flashpoints, you can work with your solicitor to put strategies in place to minimise the likelihood of problems arising. Can your chosen executors work well together or are they likely to clash from the outset? Is there already disharmony in the family? In these cases, appointing a solicitor as executor is a good way to prevent arguments and ensure a smooth and independent administration process.
Are you estranged from a family member who is likely to challenge your will? Putting together a statement detailing your version of events surrounding the estrangement can be an invaluable way of presenting your side of the story if a dispute occurs – remember, you won’t be around to tell it! Alternatively, a smaller gift to such an individual can prevent a claim – such a gift can also be paired with a non-challenge clause, meaning that if the individual brings a claim, they risk their gift under the will being invalidated.
Where there are others who are financially reliant on you, ensure they are provided for in your will eg. an unmarried partner or an elderly relative living with you, or an adult child receiving monthly top-ups to their income.
If you have made lifetime gifts or loans, what is to happen when you die? Are these to be written off or taken into account when determining who receives what from your estate? Giving thought to this now, and putting your agreement in writing, can avoid arguments later.
A common challenge to wills is that the person lacked capacity when they made their will (ie they were not capable of making that type of decision at the time). If there are any medical conditions which may impact on your cognitive functioning or capacity, be open about this. A capacity assessment at the time of making your will can dispel arguments that your condition prevented you from being able to put a will in place. Often this can be carried out unobtrusively by the solicitor at no extra charge, in some cases a medical opinion may be required but, again, better to tackle this head on to avoid problems further down the line.
6. Ensure Validity
It is all well and good putting a fantastic, well thought out will in place but this means nothing if it is not properly signed, dated and witnessed, or if it cannot be found when you die. Make sure you sign your will in accordance with your solicitor’s instructions (in their presence is best), and that your executors know where your will is stored. Often your solicitor will be able to store this for you but some firms do charge for storage so be sure to ask.
At Churchers we store wills free of charge to give clients that extra peace of mind.
By Faye Evans TEP, Partner at Churchers Solicitors LLP