Is My Will Watertight?
The short answer is no. However, there are a range of options available in order to mitigate the risk of family members making a claim against your estate once you have passed away.
If someone tries to make a claim against your estate once you have passed, this would be governed by the Inheritance (Provision for Family and Dependents Act) 1975. A person can only bring a claim against the estate if they are:
- A spouse or civil partner of the deceased;
- A former spouse or civil partner of the deceased (that has not remarried);
- Any person whom for two years immediately prior to the death of the deceased was living with the deceased as if they were a married couple or civil partners;
- A child of the deceased;
- Any person (who was not a child of the deceased) but was treated by the deceased as a child of the family;
- Any person who immediately before the death was being maintained wholly or partially by the deceased.
When considering a claim, the court will have regard to:
- The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any other applicant for an order under S.2 of the Act has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- Any obligations and responsibilities which the deceased had towards any applicant for an order under the said S.2 or towards any beneficiary of the estate of the deceased;
- The size and nature of the estate of the deceased;
- Any physical or mental disability of any applicant for an order under the said S.2 or any beneficiary of the estate of the deceased;
- Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider.
In some cases, it may be appropriate to also include a letter of wishes that will record your wishes in further detail, also explaining why you have made the specific distributions to certain people or organisations. Although this is not mandatory, it will assist in providing further evidence to the court if someone were to contest your will.
There is no guarantee that a claim will not be brought against your estate when you die however a properly drafted will can reduce the grounds on which any potential claimant could make a claim and it is therefore essential that your will is drafted correctly and concisely to reflect your true wishes.
Having a will in place is a fundamental step in ensuring your assets and wealth is distributed how you would like it to be after your death. Without a will, you will run the risk of the intestacy rules dictating how your estate will pass which could result in estranged family members far down the blood-line inheriting all or part of your estate. Please see our previous blog: Intestacy (Dying Without a Will) – What Will My Spouse/Civil Partner Get? for further information about dying intestate.
If you are concerned about a family member making a claim against your estate after you die, please get in touch with Lanyon Bowdler where our dedicated team can give you specific advice regarding your circumstances.