~By Mike Green~
There is a general perception that the wishes expressed in your “Last Will and Testament” will be respected by those who survive you, and by the Courts. Unfortunately, that view may no longer be as well founded as it once was.
We lawyers have traditionally encouraged everyone to make a Will. It was (and remains) a sensible thing to do. It allows you to dispose of your worldly goods in accordance with your wishes, and gives you an opportunity to make gifts to friends or relatives who would not otherwise benefit. It is also a chance to make a donation to a favourite charity or two.
That was a course of action followed by the late Mrs Melita Jackson, who saw her Will as an opportunity to leave £500,000 to three charities and nothing to her estranged daughter, Heather Llott. This intention was re-enforced by a letter written by Mrs Jackson and left with the Will. The letter explained that Mrs Jackson had been estranged from her daughter for about 26 years and did not feel that her daughter should benefit from the Estate. The letter even instructed her Executors that if her daughter challenged the Will, the Executors were to resist such a challenge.
Mrs Llott challenged the Will and was originally awarded £50,000 from the Estate. She then appealed this decision and had her award increased to £163,000. It is reported that the charities are themselves considering appealing to the Supreme Court.
So what are the lessons we can draw from this. The first is that Wills are not as final as you might think. If you feel you have not been given the treatment in a Will which you believe should have been appropriate, then it may be that the Will can be successfully challenged. Secondly, if you are seeking to exclude a close relative from your Will, that might not be as easy or certain as you might have thought.
Generally speaking it is very difficult to challenge a Will, 99% of Wills pass through without issue. The most successful challengers are usually spouses or close relatives. Below outlines some of the grounds on which one can challenge a Will:
- Fraud and undue influence: This would typically involve someone who has manipulated a vulnerable person to make decisions in their Will;
- A second Will: The latest Will and Testament will trump the original Will;
- Insufficient witnesses: If one of the witnesses is named in the Will his or her gift may be voided;
- Will’s provisions: The Will must contain the legal requirements set by the country’s law.
Needless to say, it is still incredibly important to make a Will – see one of our earlier blog post on the why you should make a Will. If you have any concerns, or if you find yourself in any of the positions listed above and would like to discuss it in detail, contact either Helen Phillips or Paula Murphy.