How To Avoid Challenges To A Will: Undue Influence And IPFDA Claims Proprietary Estoppel

It is a common misconception that if you have a will drawn up clearly setting out your instructions that it cannot be challenged.

Unfortunately, this is not the case, and there are three common grounds on which your will could be contested:

–        A claim that your will is not valid due to a lack of capacity, intention or failing to observe the formalities for execution of wills laid down in the Wills Act 1837;

–        A claim that your will does not adequately make reasonable financial provision for a qualifying person under the Inheritance (Provision for Family and Dependants) Act 1975;

–        A claim for proprietary estoppel.

A claim against the validity of your will

If your will is drawn up by a solicitor, it is far less likely that a claim in respect of the validity of your will would be successful.

A claim could be made that your will is invalid due to the following reasons:

• the formalities for execution of wills laid down in the Wills Act 1837 not being met;
• You were unduly influenced to make a will;
• You lacked testamentary capacity at the time your will was executed.

As noted above, someone may be able to challenge your will on the grounds of undue influence. A will can be shown to be invalid if the will maker was unduly influenced, meaning that the will maker was coerced into making a will that they do not desire to make or would not otherwise have made.

The person who is attempting to prove undue influence may be successful if the following can be evidenced:

• The will maker was vulnerable to being unduly influenced due to a medical condition such as dementia;
• The will maker was dependent on the person who allegedly unduly influenced the will maker; or
• The will distributes assets unexpectedly.

How to avoid challenges to your will on grounds of undue influence

If you are planning to distribute your estate in such a manner that your family and loved ones would consider unexpected, a challenge against your will has a possibility of being successful. Precautions can be taken to mitigate this.

Firstly, and to further strengthen the case that the contents of your will are your intentions, you may wish to obtain a certificate from your doctor in relation to your capacity, which confirms that you are fully aware of the contents of your will in an effort to prevent any future challenges being successful.

Secondly, you may wish to communicate with your family and loved ones how you intend to distribute your assets in order to let them know your intentions, so they are not surprised upon discovering the contents of your will for the first time after you have passed.

It is also usual for your solicitor to see you alone, so that it cannot be alleged that any third party was influencing your decisions.

A claim that your will does not adequately provide reasonable financial provision

Under the Inheritance (Provision for Family and Dependants) Act 1975 and Inheritance Act 2014, some people may be able to make a claim against your estate for reasonable provision if you do not make reasonable financial provision for them in your will.

The type of person would potentially include an ex-spouse that has not remarried, and for whom no financial consent order was provided by the courts, any children that you may have, someone who was raised by you as a child of the family, anyone maintained by you at your death and anyone who, two years prior to your death was living with you as your spouse or civil partner.

The test of ‘reasonableness’ will be undertaken at the time of your death. The inclusion of an additional clause in your will specifically addressing why you have chosen not to benefit someone will go some way towards rebutting any such claim as the court will look at your will when determining what is reasonable in the circumstances.

We would also advise that you may wish to place a letter of wishes with your will, further explaining your decision in this regard. In the event of a claim or challenge being made this may assist in rebutting any such claim.

As stated above a certificate from your GP may also assist in rebutting any such claims.

A claim for proprietary estoppel

Someone may bring a claim for proprietary estoppel against your will if they are of the belief that your will does not honour promises made by you in your lifetime and they have relied upon these promises to their own detriment.

For a claim of proprietary estoppel to succeed, there are three elements to the claim that must be present.

• A promise (assurance);
• Which was relied upon (reliance);
• And that the reliance was to that party’s detriment.

If circumstances have occurred where you have promised individuals an interest in your estate (such as any bricks-and-mortar property you own) and you did not honour this either in your will or by the outcome of the Intestacy rules, then a claim could be made against your estate.

If all the elements of proprietary estoppel are present, the court may hold that it is unconscionable for you to have gone back on your promise, and may make an award. This award may not necessarily grant the person making the claim the entirety of the property promised, but it is left to the court’s discretion on how to best compensate for their loss.

To avoid this uncertainty and any possible claims against your will on the grounds of proprietary estoppel it would be very beneficial to start estate planning.

Perhaps the most effective way to prevent proprietary estoppel claims is by preparing your will. This would demonstrate your intentions and, coupled with a letter of wishes as noted above, would further strengthen your will and prevent any challenges in the future.