Another alternative is to consider asking the solicitor to include a ‘no challenge’ clause in the will. This may be accompanied by a modest legacy to the person who may otherwise have been excluded.
For example, the client may leave a legacy of £50,000 to a beneficiary with a direction that if that person challenges the will, or the amount received under it, then the legacy will be forfeit and the beneficiary will receive nothing.
These clauses are not always legally effective – for example, if a will is ruled to be invalid by a judge, then the ‘no challenge’ clause would fall away as well. However, at the very least the clause can act as a deterrent.
Leaving a modest legacy to someone the client may wish to exclude can also deter claims under the Inheritance Act in other ways.
In order for a claim under the Inheritance Act to succeed, the person claiming has to prove that the financial provision made for him or her in the will is not reasonable in all the circumstances.
Depending on the circumstances, leaving a person nothing at all can be reasonable. However, it becomes more difficult to argue that provision is unreasonable where the potential claimant has been left something.
Unfortunately, none of the above methods (or indeed any other method) is a foolproof way to avoid disputes post-death.
But it may be of some comfort to know that the courts are slow to interfere with a person’s testamentary wishes as demonstrated by the Supreme Court’s decision last year referred to earlier, in which the sanctity of the principle of testamentary freedom was confirmed.
The courts will need a good reason to depart from the wishes of a testator; a party who considers that the dispositions in a will are simply unfair is unlikely to find favour with a judge. The courts are not in the business of judging a testator’s morality.
Despite not being able to avoid disputes entirely, there are things that can be done as we have seen above. Taking professional advice is the key. That, in combination with careful planning while the client is alive, will assist in ensuring the last wishes are respected.
Gareth Ledsham is a partner in the trust and estates dispute team at Russell-Cooke
