Frequency of will challenges likely to increase with time
A recent online article outlines some of the reasons why will challenges occur frequently in Britain. According to this story, a recent poll revealed that almost half of the population of the UK does not trust their family to manage their affairs for them. Additionally, almost half of the people in the UK do not prepare a final will. This is due to the false presumption that their assets will transfer automatically to their heirs after death. Common problems occur when it comes to multiple marriages, half-siblings, and couples who cohabit without being married.
Additionally, many people fail to update their wills. As a result, the main beneficiary under an old will may have died long before the testator. This can have unintended consequences with assets passing to other individuals. It can also result in unpredictable scenarios where the Court’s intervention is required to assist with will interpretation.
The UK poll also revealed that even if there is a will in place, more than 12.6 million Britons would challenge its validity if they felt the assets were divided improperly. If a person in the UK feels there is something improper with a will, they can enter a caveat in order to block the grant of probate by the Court. (In Ontario, a similar document called a Notice of Objection can be filed to stop the probate process). Blocking the grant of probate stops the executor from acting on the will in question. In 2017 there were 8,100 applications in the UK to stop the grant of probate.
According to many law professionals, the most common basis for a will challenge in the UK is undue influence. This occurs when the deceased is alleged to have been unreasonably pressured to sign a will. Other grounds for a will challenge include lack of testamentary capacity and rectification of clerical errors in a will.
A person making a will can decrease the likelihood it will be challenged
Ideally, you should hire a lawyer to prepare your will. You should also update your will or estate plan whenever a major life event occurs. Some of these include marriages, divorces, births, and deaths in the family. Depending on the assets you have, it may be prudent to deal with assets differently under more than one will.
There are many will challenges where the validity of a will is questioned as a result of the testator crossing out a beneficiary or making handwritten changes. It is also prudent to avoid making changes to your will by writing on it, or crossing out sections. Minor handwritten changes that do not comply with the statute or law can lead to major problems with a will.
In addition to lack of capacity and undue influence, there are other options to contest the validity of a will. These may include: improper execution, the will violating a public policy (for example, based on discrimination), improper drafting, or fraud.
A lawyer experienced in will drafting and estate planning is your best choice when it comes to organizing your affairs.
Will challenges will likely also increase in Canada
A recent online article outlines some of the reasons why estate disputes will likely increase in Canada over the next decades. According to the story, approximately $1 trillion of personal financial assets will be transferred from one generation to the next between 2016 and 2026. This is the biggest inter-generational transfer of wealth in Canadian history. Notwithstanding, the majority of Canadians have not discussed how they plan to pass on their wealth with their heirs.
According to the story, a survey conducted by IPC Private Wealth showed that 58% of Canadians have not had discussions with their heirs about their estate plans. Furthermore, of these 58%, a significant number (12%) do not intend to discuss their estate plans with their heirs at all.
The above findings suggest that over the next years there will be a significant number of potential heirs in Canada who are going to find out that they are going to receive less than they anticipated. This will more than likely lead to an increase in the frequency of will challenges and estate disputes. Instances where people have been disinherited will also inevitably increase in number.
If you have been disinherited and you believe it may have been the result of undue influence or due to the lack of testamentary capacity, you should speak with an estate litigation lawyer. You need to know your rights with respect to your potential inheritance.