In a previous blog article we explained the different grounds for a successful challenge to a Will. We thought that this was an important article as it is often cited as a reason for not writing your own Will. Many times we have seen lawyers claim that if you write your own Will or use a service like the one at LegalWills, then your Will is more likely to be challenged. In our previous article we explained that there are five key grounds for a challenge (see the original article for a more detailed description);
- Mental capacity: The person making the Will must understand that they are indeed writing and signing their Will
- Undue influence: In order to contest a will on the ground of undue influence, it must be shown that the testator did something contrary to his or her true desires.
- Improper execution of the Will: This varies by jurisdiction but in general the document must be signed in the presence of two or three witnesses who are not beneficiaries in the Will
- Fraud: This can take many forms from the falsification of documents including forged signatures
- No provision for dependents: This varies widely across jurisdictions but there are sometimes people who have to be included in a Will.
Last week, we saw an example of the “no provision for dependents” in the case of Sir Jimmy Saville. A three page Will, prepared by a solicitor in England, being challenged by a person claiming to be his illigitimate child. In this case though, the solicitor is blameless, as it is almost certain that Sir Jimmy did not divulge to the will-writer that he may have a child from a short intimate encounter in 1970!
But it is worth keeping in mind that according to English law a dependent can challenge based on the Provision For Family And Dependants Act where according to the article
The Act gives a child or other dependant the right to make a claim against their parent’s estate, for which they are required to successfully argue that ‘reasonable financial provision’ was not made for them.
They would also have to prove that whatever amount they sought was a ‘reasonable maintenance’, based on how well they already were able to support themselves’.
It is complicated, because as the solicitor in the article rightly explains
“a judge would pay close attention to what Mrs Ray needed to maintain herself financially. This is where adult children with jobs or earning capacity often fall down, as the vast majority tend to be financially independent and used to providing for their own standard of living, It would be open to the court to conclude that nothing at all was in fact reasonable financial provision, and it may well do that, if it considers that she is well provided for from her own resources.”
I always find the comments underneath the article to be the most interesting and it appears that sympathies lie with the daughter who grew up without a father. The three most approved comments are;
“I assume he didn’t pay for her upbringing so why shouldn’t she have a claim to it now? No amount of money can replace not being loved and raised by both your parents. She will forever be affected by this rejection.”
“She’s entitled to it. Shame on him for not acknowledging her”
“Saville had the opportunity to address this when he was alive and chose not to. He had a responsibility. God luck to her …”
So the lesson? firstly, make sure that you have written your Will, and then make sure that it is up to date. Using a service like the one at LegalWills.ca, USLegalWills.com and LegalWills.co.uk, you can update your Will in a few seconds to make sure that it always reflects the most recent changes to your financial and personal situation. Things can happen in your life, not just to you, but to people mentioned in your Will. It may not be an illegitimate child coming out of the woodwork!! but there are countless reasons why your Will would need to be updated; if the guardian for your children suddenly becomes unable to take on that responsibility, if your Executor no longer seems the most appropriate choice, or if somebody comes into your life who you may wish to acknowledge in your Will.
We will be watching this case with interest to see whether the courts overturn Sir Jimmy’s Will.