Jasmine Birtles
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Navigating complicated Wills
Isobel Lawrance
21st Feb 2022
Losing a loved one is hard enough, without the added stress of trying to navigate Wills. Plus, if the Will is not as straightforward as you’d hoped, it can be difficult to know where to start.
You may have difficulty understanding the wishes of the deceased as stated in the Will. Similarly, the legal jargon is enough to confuse anyone. Legal issues arising from a Will are the last thing you need to think about when trying to sort your loved one’s estate.
We have created a handy guide surrounding the issues which can arise when navigating a Will. We also discuss the ways in which these problems can be confronted and overcome, so you’ll have all the information you need going forward.
- Complex Wills
- Jargon
- Contentious Probate
- Other issues arising in Wills
- Solutions of issues in Wills
- Absence of a Will
Complex Wills
Complex Wills contain the same information as a standard Will but are slightly more in-depth. Wills usually contain the name of the executor, beneficiaries and who gets the estate if the original beneficiaries are unable to accept. It could also include charitable donations or gifts, and who will look after pets.
Complex Wills provide the testator with much more in-depth ways to distribute their estate. In a complex Will, you may find direction surrounding how the Will is to be split between children from more than one marriage, how children with disabilities are to be cared for, who gains control of any family businesses and who gets stocks and shares owned by the deceased.
If your loved one has a complex Will, it is important to ask for guidance from professionals. Hiring a solicitor to talk you through the more complex terms within a Will will not only give you peace of mind but avoid any disputes between beneficiaries and family.
If there are disputes around the administration of someone’s estate, whether or not there’s a Will, it is worth speaking to a specialist probate litigation lawyer who is experienced in sensitively guiding people through challenging issues.
Jargon
Understanding the legal jargon within a Will can be hard work. Even those who have dealt with a loved one’s Will previously are likely to be stumped by some of the more complicated terms within the document.
Firstly, it is important to understand the people who may be mentioned within a Will. A testator is the person who makes the Will and the executor carries out the Testator’s wishes. A beneficiary is a person to whom a gift is left, and the person who manages a trust set up for the beneficiary is a trustee.
Some of the other most common words which appear in Wills include Assets, Attestation, Estate and Probate:
- Assets: The valuable items you own, such as possessions, property and cash.
- Attestation: The signing and witnessing of a Will.
- Estate: The total of your assets, minus the value of anything you may owe.
- Probate: This gives the executor the authority to administer the estate and proves the Will is valid.
CONTENTIOUS PROBATE
Contentious probate encompasses all disputes around the administration of someone’s estate, whether or not there is a Will available. Issues might be raised by disgruntled beneficiaries, personal representatives, trustees or dependents. This could be in relation to mismanagement of the estate, claims against the estate or the interpretation of a Will or trust document.
Becoming involved in an estate dispute is likely to be difficult and distressing at a time when you may already be grieving. Using the help of experienced probate litigation solicitors is important in these circumstances.
Not only can they help you to understand the Will and any reasons for disputing the Will, but they take the time to understand any underlying issues and how best they can help resolve a dispute.
Thankfully, most contentious probate matters are resolved outside of the courtroom, but if litigation becomes the only way forward to protect your interests, solicitors would take prompt action on your behalf. It might even be worth looking into litigation funding, but make sure you do your research.
Other Issues arising in Wills
Invalid execution of a Will:
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- Witnesses must be present for the signing of the Will. In the circumstance where witnesses to the will have not witnessed the testator signing it, or acknowledged a signature in their presence, the Will would be void.
- The witnesses must not be beneficiaries or of the beneficiary. This will also render the Will void..
Marriage:
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- If a testator makes a will whilst single and then subsequently marries, the marriage causes the will to be void.
- A clause about the anticipated marriage could be included in the Will stating the Will should remain effective after the marriage.
- If not, a new will must be made.
Solicitor error:
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- A solicitor may mistakenly draft a clause within the Will that is not in line with the testator’s wishes.
- This could include drafting an ambiguous clause or misunderstanding the intention of the testator.
- Any misconstruction of the testator’s intention will have adverse consequences upon death
Gifts in the Will become ineffective:
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- If the death of a beneficiary occurs before that of the testator and there is no available substitute beneficiary, the gift is no longer available or the gift is not specifically stated and unable to be identified, it becomes ineffective.
Jurisdiction issues:
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- If a foreign jurisdiction fails to recognise an English Will, immovable assets such as property may fall under local forced heirship rules.
Solutions to issues in Wills
Rectification
If you wish to rectify an invalid Will due to either clerical error or failure to understand the testator’s wishes, an application can be made to the Court. Clerical errors may include mistakes made by solicitors, typists or the testator themselves. This could be adding or omitting something in error.
The court will consider the testator’s intention when considering if the Will can be rectified. They may need external evidence in order to do so.
In the case of a solicitor error or negligence, the solicitor may be called upon to reimburse the beneficiary for any court costs incurred when aiming to rectify a Will.
Negligence claims
If rectification is deemed unsuitable, a claim against the solicitor that negligently prepared the Will may be an option. A beneficiary of a will has a right to damages against the solicitor whose negligence has caused them to suffer loss. The duty of care owed by the solicitor to the testator is automatically extended to any beneficiaries.
The duty also extends to circumstances whereby a solicitor sends a Will to a client for signature. The solicitor has a duty to examine the returned Will to see whether it appears to be properly executed. If they fail to notice errors, they may be liable for any losses incurred by the beneficiaries.
Absence of a Will
Navigating a Will is hard enough, but what if there is no Will in the first place? According to Citizens Advice, if a person dies without leaving a valid will, their estate must be shared out according to certain rules.
These are rules of intestacy, and anyone who dies without leaving a Will is titled an intestate person. Under the rules of intestacy, only married or civil partners can inherit a loved one’s estate. Some other close relatives can also inherit in the absence of a partner.
This is the case if someone makes a will but it is not legally valid. The rules of intestacy take precedence over the wishes expressed in the Will. These rules also decide how the estate will be shared out.
Disclaimer: MoneyMagpie is not a licensed financial or legal advisor and therefore information found here including opinions, commentary, suggestions or strategies are for informational, entertainment or educational purposes only. This should not be considered as financial or legal advice. Anyone thinking of investing should conduct their own due diligence.
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