Not a laughing matter
You may have recently seen in the media that the adult children of Monty Python star Terry Jones are making a claim against his estate. It is reported that Mr Jones’s wife is the main beneficiary of the Will and his children, from a previous marriage, are asserting that Mr Jones, who suffered from Dementia, did not have the capacity at the time of making the Will.
With an ageing UK population, claims relating to capacity are becoming increasingly common. In order for a Will to be valid, the testator must have had testamentary capacity at the time they made it. The test for capacity is established by case law following Banks v Goodfellow. A person making a Will must:
- understand the nature of the Will and its effect;
- have some understanding of the extent of the property of which they are disposing under the Will; and
- are aware of the persons for whom they would usually be expected to provide.
Being aware of the persons for whom you would usually be expected to provide is vitally important if you are part of a blended family, with a number of potential beneficiaries.
One mechanism that you may wish to consider using in your Will, which could allow you to balance the differing needs of your family members, is a life interest trust. This allows a named beneficiary, the life tenant, the right to live in a property and/or receive income from your estate for the rest of their life but does not give them a right to the underlying capital. You can select different beneficiaries to receive the capital, once the life tenant has died. This is commonly used in circumstances like Mr Jones’, with the surviving spouse being given a life interest in a property or entire estate and the adult children being given the capital interest in remainder.
Another potential way of avoiding problems between family members after your death is to talk about your Will and why you have chosen to benefit the people that you have. There is a six-month time frame for claims under the Inheritance (Provision for Family and Dependants) Act 1975 (although this does not apply to claims against the validity of a Will). If people are in shock when the contents of the Will are revealed, this can lead to a knee-jerk reaction to make a claim. Writing a letter of wishes to accompany your Will, explaining your reasons for making bequests to certain people and not others, can also be valuable.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org