I am regularly confronted by clients, friends and family members with the age old question: ‘Why bother with a will?’ My answer is simple: if you do not have a will in place, there is a real possibility that your estate could be distributed in a way that is inconsistent with your wishes. Furthermore, administering an estate where there is no will (an intestate estate) is far more complicated than the alternative – and is therefore an unnecessary and easily avoidable burden on your loved ones.
The inevitable second question soon follows: ‘Why should I pay a lawyer to prepare my will if it can be contested when I die?’
Again, my response is simple. I explain that the proportion of challenged / contested wills is small when compared with the proportion of wills admitted to probate unchallenged. This is because a will can only be contested by a limited category of ‘eligible persons’, who must demonstrate they have been left without adequate provision in the will and that the deceased had a moral obligation to provide for them. Only in these very specific and limited circumstances will a court intervene with a deceased’s will – and even then, the court will consider the deceased’s stated intentions in their will.
The final question posed to me on this riveting topic of conversation / cross-examination is: ‘Why can’t I draft my own will?’
My response is not as simple. Often I must give examples of the litigation I have been involved in which illustrate the pitfalls of not having a solicitor-drawn will and succession plan in place. These include:
- a handwritten will prepared by the deceased’s son that excluded the deceased’s daughter. This was subsequently challenged by the excluded daughter on the basis that the deceased was blind and incapable of understanding the contents of the will. The litigation in this matter spanned over several years and could have been avoided with a solicitor-drawn will and independent legal advice;
- a contested court application for orders on the construction (ie interpretation) of a very poorly drafted and ambiguous handwritten will made by the deceased that did not properly dispose of his estate; and
- an estate that was ultimately distributed to the deceased’s nieces and nephews as a result of an invalid will. The deceased’s nieces and nephews all lived variously across Europe and had not spoken to the deceased in years. This necessitated hiring a private investigator and genealogist to track down the beneficiaries and advise them of their entitlements under the estate, resulting in significant costs to the estate.
The crux of my response is: if you are the author of your own will, then you could be the author of your own misfortune.
Irrespective of whether your will is challenged or not, it is incredibly important to have a current will in place which clearly outlines your wishes. If you do have concerns about your document being contested, then I can assist and advise you regarding strategies to protect you and minimise the risk of a challenge to your will.
If an estate or will of a family member / loved one is being contested, I can help you defend the litigation and provide you with clear and sensible advice – with a view to resolving the claim with minimal cost and delay to the estate. Similarly, if you have an estate that needs administering, I have considerable experience in administering estates and obtaining grants of representations and can guide you through what is an emotional and daunting legal process.
If you have any questions about this article please get in touch with the author or a member of our Wills & Estates team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.