Preparing for the unexpected: ensuring your loved ones are provided for in line with your wishes

As COVID-19 has struck without warning, many of those who have passed away did not have opportunity to get their personal affairs into order, may have died without leaving a will, or left a will that does not make reasonable financial provision for their loved ones.

The passing away of a loved one is an undoubtedly difficult time, particularly as in the current situation and with the social distancing requirements of COVID-19 many people are passing away without their loved ones by their side and accordingly are being denied the chance to say goodbye.

The importance of having a correct, effective, valid will in place

Some people will have instructed legal advisors to make wills, but may have encountered difficulties due to lockdown restrictions, or the urgent need for a will to be prepared and instead may have taken the decision to prepare the will themselves or ask a family member to do so.

As a result of the urgency they might not have made reasonable financial provision for their loved ones or if they have made a homemade will there is a possibility that it might not comply with the necessary regulations or may be unclear.

The loss and grief that families are already suffering after a loved one dies from COVID-19 will only be compounded if the estate fails to make reasonable provision for them or is invalid because of a failure to comply with the regulations, leading to concerns about living arrangements and financial security.

Basis for challenge to wills

Although this is not an exhaustive list, the following may cause a will to be challenged, for example if a family member including a long-term partner:

• Does not inherit anything because their loved one was unable to make a will (intestacy) and the intestacy fails to make reasonable financial provision for them
• Does not inherit under the will
• Does not believe that the will makes reasonable provision for them
• Has concerns about the validity of a will; or
• Believes the terms of a will are unclear.

The above issues are considered in more detail below.

Failure to make reasonable financial provision for a loved one

Anyone falling into one of the categories below can make a claim against an estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act):

• A spouse or civil partner (or former spouse or civil partner if you have not remarried or entered into another civil partnership) of their deceased loved one
• A cohabitee who was living with the deceased for at least 2 years before the deceased’s death
• A child of the deceased
• Someone who was treated as a child of the deceased – for example a step child
• Someone who was being financially maintained by the deceased.

To be successful in a claim, they will need to prove:

1. That the deceased was domiciled in England or Wales. Domiciled simply means that England or Wales was the deceased’s permanent home

2. That the will (or if there is no will the rule of intestacy) has failed to make reasonable financial provision for them

3. If the will or the rules of intestacy have failed to make reasonable financial provision, they must then show what reasonable provision they require.

When considering a claim, the court will look at:

• Their financial circumstances now and in the foreseeable future
• The financial circumstances now and in the future of any other applicant
• The financial circumstances now and in the future of the beneficiaries of the estate
• Any obligations owed by the deceased to the parties
• The size and nature of the net estate
• Whether any other parties are suffering from any physical or mental disability; and
• Any other relevant factor including conduct.

The law requires all 1975 Act cases to be issued at court within six months from the date of issue of the Grant of Probate or Letters of Administration. If you miss this deadline, the court will have to give you special permission to hear the case.

Disputing the validity of a will

If a will is found to be invalid, the deceased’s estate will pass in accordance with the terms of the most recent earlier will, or if there is no will the laws of intestacy apply.

There are several grounds upon which a will may be found to be invalid:

• Lack of testamentary capacity – for example, if the deceased suffered from dementia, or was on medication which may have affected their capacity;
• Undue influence - a will is not valid if it is made with undue influence. This means coercion, not necessarily force. Persuasion is usually not enough to prove undue influence.
• Want of Knowledge and Approval – the testator (the person making the will) should know and approve the contents of the will. Where someone who benefits under the will was involved in the will making process this warrants further explanation.
• Lack of due execution – the will must be in writing; signed by the testator or by someone else in his/her presence and by his/her direction; and witnessed by two or more witnesses who were present at the same time.
• Forgery – for example, the testator’s signature on the will is not genuine, or changes are made to the will after signature without the permission of the testator.

Unclear terms of a will

It is not uncommon for the terms of a will to be unclear, particularly if they are prepared without professional advice. In these circumstances, it may be necessary to make an application to the court for rectification of a will, or construction of its terms to give effect to the deceased’s intentions. These claims must be brought within six months from the date of issue of the Grant of Probate.

Where a death has been sudden and there are concerns about either the preparation of a will, or whether a will is valid, it is important to take legal advice as soon as possible. Sometimes the courts are able to interpret a confusing or unclear will. There is however always a risk that a badly prepared will may not be valid.

Where someone has been left out of a will or receives less than reasonable financial provision under a will or intestacy, it is possible to bring a claim against the estate but again it is vital that they act quickly as there are very short timeframes for bringing such claims.

Conclusion

Whilst COVID-19 presents challenges to ensuring the correct execution of valid wills, a will which has been prepared, but is not valid and / or is unreasonable in its provisions can result in challenge. Family members who find themselves not provided for or who have concerns may be able to take steps to receive something from the estate.