How careful planning can reduce the risk of a challenge to your will

The term contentious probate covers a range of claims that may follow a death.

These can include direct challenges to the validity of a will, a claim against an estate to make reasonable financial provision for someone, or claims about the ownership of assets.

“One of the main issues we see is a will being drafted without looking at the farming reality, in terms of diversifications and without looking at the partnership agreement and how things are structured,” says Johnny Coulthard, contentious probate partner at Burnetts Solicitors.

See also: Avoiding the pitfalls when making a will 

This can give rise to assets being gifted that the person making the will doesn’t even own, and often too little thought is given to the whole picture – the business and the family, and how they interact.

Sometimes there is no will. But more often the problem is an outdated or poorly drafted will.

Once someone has got round to making a will, it is common for it to be put in a drawer and left, but wills should be reviewed regularly, suggests Johnny, who specialises in advising on contentious agricultural estates.

Common types of will challenges include:

Promises – for example, promises made to adult children that they will inherit the family farm or other assets, only to find out, usually after a death, that the promise has been broken in a will.

If the person expecting to inherit has relied on the promise to their detriment, for example, working long hours on the farm for little or no pay, they may be able to pursue a claim under a legal doctrine known as proprietary estoppel, even if the farm has been left to someone else.

“We see a steady stream of these claims,” says Johnny.

Invalid wills – disputes concerning farming wills often arise from concerns about the capacity of the testator, or that they may have been unduly influenced.

These are the most common causes of challenges to farming wills.

“People often make changes to their will at a later stage in life, and perhaps when their health is in decline.

“This can make them vulnerable to undue influence or give rise to concerns about their capacity to make the will,” says Johnny.

However, safeguards can be put in place to record both that the testator has capacity and that they are acting free from any undue influence.

A will may also be invalid because it has not been properly executed, through incorrect witnessing (will signatures should be witnessed by two people who are not beneficiaries), or sometimes not even signed by the testator.

These issues tend to arise most commonly when homemade or pre-printed wills have been used.

Challenges can also be made under “knowledge and approval”, which questions whether someone knows they are signing a will and is aware of its contents.

Sometimes there is an overlap between this and testamentary capacity.

A further ground is that of “fraudulent calumny”. This is where the mind of the testator has been poisoned against a beneficiary in order to get them removed from the will.

Proving undue influence

“It’s quite a high threshold to prove undue influence, and the court will want to see evidence,” says Johnny.

“The court will often look at independent evidence from people who knew the deceased, but who are not a beneficiary under the will.

“The court will attach a lot of weight to that, particularly professional evidence from land agents, accountants and other advisers who knew the dynamic.

“Also, any contemporaneous documents from the time that these decisions were being made.

Medical evidence can be brought in (also for testamentary capacity questions) to see if there was any sort of vulnerability (making someone susceptible to undue influence) or if anything was mentioned to the doctor about any concerns.

“If you can show that the evidence is pointing in one direction, but the will says something else, that’s what we’re trying to demonstrate.”

Partnership issues

If farmland and buildings are held for the benefit of a partnership, they may not pass directly through the terms of the legal owner’s will.

Instead, it can be the value of the deceased’s interest in the partnership that will pass under the will.

“This can be a particular problem if there is no partnership agreement.

“The main point of dispute is usually whether an asset, such as the farm, is a partnership asset or whether it is owned individually outside of the partnership, with the partnership simply having a right to occupy the farm.”

If there is no partnership agreement, then the terms of the Partnership Act 1890 will apply, which can dissolve the partnership on the death of a partner, with the shares distributed evenly between all partners.

Inheritance Act claims

If there are children in financial need, or people financially dependent on the deceased, and a will does not make sufficient provision for them, they may be able to claim reasonable financial provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Such claims can be made by a spouse or civil partner, although there is no requirement for them to show they have a financial need or dependency to bring a claim, points out Johnny, adding that spouses are sometimes not included in a will, but that their claims are generally strong.

Both adult and minor children have to show a financial need to be maintained by the estate to bring a claim.

“In adult children claims, the courts will often consider the moral aspect of a claim. For example, in a situation where someone inherits a farm or other substantial assets, but whose sibling has not been reasonably provided for.

“That sibling may have earned less than otherwise because they have been providing care to the deceased.

“They may have a claim as a result of their precarious financial position, and you see that kind of claim coming forward in a farming context.”

In such cases, bank statements, incomings and outgoings, along with accommodation needs, would be considered.

Inheritance Act claims must be made within six months of the grant of probate being issued.

The court can award lump sum payments, the transfer of property, the granting of a life interest in a property, or periodical payments.

When a lawyer is instructed to prepare a will, they should keep a contemporaneous record of the key decisions made and the justification for these.

“This can seriously mitigate the risk of a future dispute and can be crucial evidence if there is any future dispute about the deceased’s intention,” says Johnny.

“Lawyer’s meeting notes are often used in court or, in the event of a potential dispute, simply to support a party’s position.

“The risk of a dispute arising can be reduced by good planning, including, for example, arranging a capacity assessment or ensuring that those in financial need are left with reasonable provision.”