Estate Planning: Where there’s a Will there’s a way …
The whole estate planning process is difficult for many clients. People often have a lot at stake financially and emotionally when they engage an estate planner. The fact that others often have an intense interest in the outcome of any estate planning doesn’t make it any easier either.
This leads to inevitable postponement of estate planning which explains why some people still die intestate. This means the deceased has no control over who will inherit the assets in the estate and intestacy rules step in to determine which family member should benefit from the estate and in what portion. The applicable intestacy rules will turn on the nature of the assets, where the assets are located and the domicile of the deceased. Depending on the jurisdiction in point, the intestacy rules can offer rather different outcomes.
It is not unusual for individuals to invest in cross-border investments to gain exposure to international markets in property, shares, currencies and other investments. This is often done in a bid to achieve diversification and to spread risk.
However, these cross border assets should be carefully considered when it comes to estate planning as they will fall under local regulations. International estate planning can involve a range of tools and an individual with an international profile should at least have an effective Will in place.
Wills and proper legal advice
Without proper legal advice many people make elementary mistakes when writing their Wills, which may mean a challenge can be brought by other potential beneficiaries down the line.
In the UK people are largely free to leave their assets to whoever they choose. You may be surprised to learn that this is in sharp contrast to much of continental Europe where laws of succession mean its virtually impossible for French parents, for example to disinherit a wayward son or daughter. There are restrictions though, and there are several grounds for a Will to be contested.
Rules of Will
A Will is a formal legal document and while you can write it yourself, it needs to be done properly, signed and verified by 2 witnesses.
In order for a Will to be valid in the eyes of the law, the person making the Will needs to:
- be of sound mind.
- understand that they are making a Will and the effects of its contents.
- be clear of the nature of their Estate and its value, and understand the consequences of excluding certain people from their Will.
Crucially, they must not be suffering from any disorders of the mind such as dementia, which may have an undue influence on their decision making. This is to prevent them making bequests, gifts and exclusions that they would otherwise not have made.
Contesting the Will
It is possible to contest a Will if there is genuine evidence that it has not been correctly produced. You can also make a claim if you believe someone wouldn’t have approved an aspect of the Will or was unaware of the contents of a Will. Inevitably suspicions arise when there is a substantial gift made to the person who was involved in the writing of the Will. This alone is a good reason to engage a professional.
Fraud can sometimes be suspected in a Will, for example a faked signature or a faked document. However, the law can also define fraud as lying. A could make up that B stole from C. If C then excludes B from her Will based on that lie, the Will could ultimately be invalidated due to A’s fraud.
Estate planning can be very complex and mistakes do get made. You can contest a Will if a genuine clerical error is made which results in the wishes of the deceased becoming unclear. It is possible too, to claim where there is evidence of negligence in the drafting of the document, or where specific wishes are unclear. A court may ultimately decide what the exact meaning of the Will may be.
How to contest the will?
If you think you have any grounds for complaint then it is important to move quickly, preferably before probate, and seek specialist legal advice as soon as possible. The longer you take to lodge an action the weaker your case will be when it comes to court. Initially the costs are relatively low; you can pay a small administration fee to lodge a caveat at the Probate Registry.
If the beneficiaries do not agree that there are grounds for complaint they can issue a short document known as a warning. This sets out their reasoning for objecting to any claim. Then the person contesting the Will, having received legal advice, can determine whether to proceed further.
At this point they lodge another short document known as an Appearance. If no agreement is reached then the probate process – the gathering up and distribution of the estate in line with the Will – will begin.
Obtaining professional impartial estate planning advice is crucial. Over the years we have tried to help people with badly written Wills often to little effect once the settlor of the estate has died. The larger your estate the greater the need for both estate planning and inheritance tax planning as an integrated strategy. Contact us now for the peace of mind that efficient estate planning brings.