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Tony Wickenden: Wills remain the bedrock of inheritance planning

Tony Wickenden Tax Planning Technical Area

There were apparently 663 disputed wills last year. This is around twice as many as in 2006.

Major causes include the severe reduction in the value of many estates due to the financial crisis and the greater number of children, who act as carers, feeling that they should be better provided for on the death of the person for whom they were caring.

Intestacy and its consequences should be the biggest reason why an individual should have a valid will to ensure that, by and large, their estate will pass to whom they wish it to pass.

However, some may resist “going to the trouble” of having a will due to:

  • the ability of the beneficiaries to agree to a post-death variation – often tax efficiently if executed within two years of death
  • the ability of the will to be challenged.

It is on the scope for the latter that more understanding in particular is required.

Just when and how can a will be challenged?

The main legislative basis of claim is under the Inheritance (Provision for Family and Dependants) Act 1975.

A claim under the 1975 Act is a claim by a person to become a beneficiary, or a greater beneficiary, of the estate of the deceased.

The object of the Act is to bring about a redistribution of the deceased’s estate between the beneficiaries and the applicant, on the grounds that the disposition of the deceased’s estate effected by their will or the law relating to intestacy is not such as to make reasonable financial provision for the applicant. The 1975 Act widened the pool of potential applicants and differentiated between surviving spouses and other classes of applicants, such as mistresses.

There are four tests which must be satisfied before an application can be made under the 1975 Act. They are as follows:

1. The deceased must be domiciled in England and Wales at the time of their death.

2. The applicant must come within the category of applicants set out in section 1(1) (a)-(e) of the 1975 Act. In summary, these are:

  • the spouse or civil partner of the deceased;

  • a former spouse or former civil partner of the deceased who has not formed a subsequent marriage or civil partnership;

  • a child of the deceased;

  • any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership;

  • any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

The Civil Partnership Act 2004, which came into force on 5 December 2005, has widened the categories of potential applicants.

3. The applicant must be alive at the time of the application and remain alive until its determination.

4. There are strict time limits for applying under the 1975 Act. The application must be made within six months of the grant of probate or letters of administration. The Court has the power to extend the time limit if an application for extension is made by the applicant. When a claim is made, an official copy of the grant of representation to the deceased’s estate must be exhibited with the applicant’s witness statement.

Once it has been determined that the applicant is entitled to bring an application, there are two further questions:

1. Is the disposition of the deceased’s estate effected by their will or the intestacy laws such as to make reasonable financial provision for the applicant?

2. If not, what will the Court consider would be reasonable financial provision for the applicant bearing in mind the range of possible orders set out in section 2 of the Act?

In answering these two questions, the meaning of ‘reasonable financial provision’ will differ depending on the status of the applicant

If the applicant is a spouse of the deceased the test is: such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for their maintenance.

In the case of any other applicant, including a former spouse of the deceased, ‘reasonable financial provision’ means such financial provision as it would be reasonable in all the circumstances of the case to receive for their maintenance.

Especially in the light of the latest publicity given to disputed wills, it will be as well for advisers to be aware of how the rules work in case they are asked by their clients.

Advisers should , perhaps acting with solicitors with whom they may have or seek to form a mutually beneficial working relationship , continue to make clients aware of the importance of having a valid will -and then regularly reviewing it. It will form the all important basis to effective financial planning – often involving key financial products such as pensions, investments and protection plans – both for personal and business purposes.

Tony Wickenden is joint managing director of Technical Connection

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