Often clients ask why should I write a Will when it can be contested anyway. Whilst Wills can be contested on the grounds of incapacity, undue influence or by someone who wants to make a family provision claim pursuant to the Succession Act 2006 the class of person entitled to make a claim is limited and the person making the claim must prove their case.
In the case of incapacity, the person making the claim must be able to prove that the Testator (person who made the Will) did not have the capacity to understand the effect of the Will at the particular time that the instructions were provided and the time the Will was signed. This can be very difficult to prove as medical evidence should be provided. If there are doubts in relation to the Testator’s capacity, the Solicitor preparing the Will can obtain a report from a Doctor in relation to capacity which will assist in defending any potential claim on the grounds of incapacity. Additionally, the Solicitor should prepare comprehensive file notes when taking instructions for the Will which can also be used to defend a claim.
In relation to a claim for undue influence, it can be very difficult for a potential claimant to successfully prove that someone exercised undue influence on a Testator and that the Will did not reflect the Testator’s wishes. Again a prudent Solicitor will ensure that no one else is present when a Will is made and question the Testator as to their wishes. This evidence can then be used to defend a claim.
In relation to family provision claims, a claim can only be made by an “eligible person” as defined by the Succession Act 2006. This limits the category of people entitled to make a claim. For example distant relatives are excluded unless they were dependent on the deceased and lived with the deceased. It is also necessary for a claimant to prove that they have financial need and that inadequate provision was made for them in the Will. The onus is on the claimant to prove these matters to the Court. The Court will not simply disregard the Testator’s wishes and, more recently, the Courts have been more reluctant to Order substantial amounts of money to Plaintiff’s.
Ensure your asset goes to the right person
Therefore, a properly prepared and well considered Will is effective in greatly increasing the chances of your assets being distributed in accordance with your wishes rather than simply allowing your assets to be distributed according to legislation on the grounds of intestacy. Additionally, it is still possible for a family provision claim to be made against your Estate if you do not have a valid Will and the potential claimant is not a beneficiary pursuant to the intestacy provisions of the Succession Act.