Protecting your will from ‘passive’ challengers

Sophie Wettern outlines the necessary steps to avoid a family turmoil after you die.

Have you made a will? If you have, you’re in the minority. Indeed, according to recent research, 58 per cent of the UK’s adult population has not made a will. This is despite the fact that three-quarters of us plan to leave money to our loved ones when we die. It’s even more important to make a will if you don’t actually want your nearest (but not necessarily your dearest) to inherit your assets, because if you don’t make one, the statutory intestacy rules will apply to ensure they benefit after all.

So if you have already made a will that reflects your wishes, you may be thinking that you have done all that is necessary and need not have further worries. But it is still not that straightforward. Despite the hallowed (to some) principle of testamentary freedom in this country, a current or former spouse, children (of any age) or any other person who was being maintained wholly or partly by the deceased, immediately before his death, can apply for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1997. For the original ‘intended’ beneficiary named in the will however, in addition to the prospect of losing all or part of the inheritance, there is (or was) a further sting in the tail.

Until recently, it was possible for a will to be challenged by a ‘passive defence’. This is when a defendant alleges concerns over a will which forces the executor of the will to issue proceedings to prove the will, meaning that the executor must go to court before commencing administration of the estate. However, once the proceedings have been issued, the defendant can sit back and wait for it to be proved at trial, without having to raising a will challenge or set out his objections to the will. The advantage of pursuing a claim in this way was that those who are not clearly eligible to claim as dependants of the deceased under the Act, could still delay matters. (If they had a weak case and were hoping for further evidence to come to light to support their claim.)

Previously, there was little risk for the defendant as he or she would not be liable for costs of a passive claim unless they acted unreasonably in bringing a challenge. However, in the recent case of Elliott v Simmonds, it was decided that the defendant had acted unreasonably in bringing a passive defence and forcing the matter to trial, and Ms Simmonds was ordered to pay over £65,000 in legal costs. This decision may discourage future use of the passive defence.

So how can you reduce the risk that your will could be challenged on your death? If you are concerned, you should ask your solicitor to keep a detailed record of your discussions regarding the provisions (and the reasons) you have made in the will and make sure that you meet with the future beneficiaries alone, to avoid any claims of undue influence. You should try to avoid making what could be seen as promises to leave someone a certain asset or amount and then changing your mind, as this could lead to a claim if they have relied on the promise.

If there is a risk of a challenge on the grounds of capacity, if you are elderly or unwell, you could consider asking your solicitor to obtain a written medical opinion, to disprove any doubts as to your capacity. You could even consider asking your doctor to be one of the witnesses when you sign your will.

Another option might be to write a letter to accompany your will, setting out your reasoning for disposing of your assets in the way that you have. If you choose to leave money to a charity, you should explain what connects you to the organisation and why you have chosen to benefit it.