Solicitor Louise Low, in our Dispute Resolution team explains the reasons why your Will may not be administered as you had planned.
Most of us expect that our affairs will be dealt with in accordance with our wishes as set out in our Will. However, that is not always the case.
Here, unlike in many countries, there is no regime of marital property or so-called forced heirship, resulting in some automatic inheritance. We have testamentary freedom to do as we wish. However, there are circumstances in which one’s estate will be dealt with differently from what is provided for in the Will.
Is my property covered by my Will?
Not all of one’s property will fall into the estate and so be covered by the Will. Jointly-owned property for example, under the rule of survivorship, automatically belongs to the surviving co-owner.
In addition, many substantial assets do not form part of the estate but are held separately in trust. For example, most death-in-service benefits are paid to trustees who then have a discretion as to how and to whom that money is paid out. Similarly, many pensions will be held in trust outside the estate. These arrangements are primarily for tax reasons to avoid these assets being added to the estate and so attracting Inheritance Tax.
However, all the assets that an individual owns outright will fall into the estate on death. In what circumstances might those assets not pass in accordance with the Will?
Challenge to the validity of the Will
There may be a challenge to the validity of the Will. This challenge can be made on a number of grounds but most commonly on the grounds that the testator did not have capacity to make a Will at the time it was made or that the Will was procured by undue influence. If such a challenge is successful, then the Will would be overturned. Any prior valid Will or, in the absence of that, the Intestacy Rules, would apply.
Deeds of Variation
A valid Will can in effect be amended by the beneficiaries after the date of death by a Deed of Variation. This may be done for a variety of reasons, including saving Inheritance Tax and further succession planning or simply because it is recognised by the beneficiaries that the provisions in the Will are unfair. Provided that a Deed of Variation is entered into within two years from death, then the changes are treated as backdated to the date of death for the purposes of Inheritance Tax and Capital Gains Tax.
Family provision claims
If a successful claim is brought under the Inheritance (Provision for Family & Dependants) Act 1975, this will alter the intended dispositions of the Will. Such claims can be brought by a limited class of people where the will fails to make “reasonable provision” for them. Such a claim can be brought by a spouse, a co-habitant, a child of the deceased, a dependant of the deceased or others with similar standing. A successful family provision claim will result in an award to the Claimant which will diminish the estate available to be distributed in accordance with the Will.
Forfeiture
As anyone who reads detective novels will be aware, you cannot inherit from someone if you are convicted of a crime which resulted in their death. This is a rule of public policy. Thus, for example, if a husband is convicted of causing death by dangerous driving and his wife dies in the accident, then he would be prevented by the forfeiture rule from inheriting her estate. It is worth noting that, under the Forfeiture Act, the husband could apply for the Court to modify or exclude the effect of that rule. The Court would do so if it considered that just in all the circumstances.
Although there are these circumstances in which a will might not be implemented as intended, that does not change the fact that it is advisable to instruct solicitors to prepare a Will. A well-drawn and professionally prepared and witnessed Will should have regard to most of the above issues and minimise the risk of these arising and having to be dealt with by your executors and surviving family.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
