Why a Person’s Will
is not Always the Last Word
There are a number of reasons why a person’s Will is not always the last word when it comes to deciding who inherits their estate
Generally, English law does recognise testamentary freedom, which is the right of a person to leave their estate to whoever they wish, provided that they make a Will. This isn’t the case in some other legal jurisdictions where the state imposes forced heirship rules which limit the decision-making power of their people. For example, in France, the law dictates what percentage of an estate must pass to any children and/or spouse.
We are commonly asked why anyone should be allowed to challenge a Will as people feel strongly about their right to decide, but there are certain circumstances where it might be appropriate for the law to step in to vary what seem to be the Testator’s (person who makes a Will) last wishes.
For example, people do not always remember to update their Will when they have had a change in circumstances, such as after the break up of a relationship or upon the birth of a child. Out of date Wills are notorious for leading to what may seem like unfair results, previous cases have seen ex-wives being left everything whilst a new partner and young child are left with nothing because someone has failed to update their Will. However, close relatives, partners or financial dependents are able to make a claim to vary a Will, to allow provision to be made for them after the death of their loved one.
Even if a Testator has chosen to exclude someone from their Will, that decision could have been made at a time when they were incapable of making a reasoned or informed decision, perhaps because they were not in their right mind or they were acting under the influence of another and the Will does not really reflect their own wishes. There are even cases where a Will has been forged entirely.
The law recognises that the court should be able to step in in such circumstances to either vary the provisions of the Will or set it aside entirely. Cases are very fact-sensitive and the merits of any claim differ greatly in each case. The court does not take the decision to intervene lightly and there are very strict requirements for such claims.
In summary, the English system does allow for some flexibility in certain circumstances, whilst still upholding the basic premise that people have the right to decide who inherits their estate. Our team of specialists can advise you on the complex issues surrounding inheritance disputes and guide you through the process.
Nicola Turner is a senior associate solicitor specialising in inheritance and probate disputes at regional law firm Napthens