The golden child

As a solicitor or qualified practitioner practising in wills, trusts and probate there can be certain probability that you will have come across or have heard about a matter concerning unequal gifting of child beneficiaries and the friction this can trigger amongst families.

Anyone having a will prepared is faced with the decision of whether or not to share gifts and wealth equally amongst their children and family, including the ever-evolving family dynamics which often include any step-children or individuals deemed “like family”. However this is not always the case, with every individual’s reason differing.

There are published guidelines to assist solicitors and will writers which include and advise that anyone making gifts during their lifetime should ensure they are properly documented, should it be challenged in the future. It’s particularly important if a testator chooses to leave gifts to one child only. Even if the testator had a very good reason for excluding certain children because that one child had been the primary caregiver perhaps and so the wishes may be to financially compensate for their time and effort.

The main challenges this could present may be that another child might claim their parent did not have the mental capacity to make the gifts at that time or that they were unduly influenced. It would be up to the solicitor to ensure there are measures in place to avoid these conflicts.

No matter how large or small a gift is, once distribution of the assets becomes a reality and details of the will are made known to the beneficiaries, there instances may arise when one or more of those beneficiaries believes that the will is invalid and go on to contest it.

Serious conflict can arise within families because of this and if that child had power of attorney over their parent’s property and financial affairs and the other children are suitably dissatisfied, they may then go on to question the financial conduct of the caregiver child.

Any challenge to a will is both costly and time consuming and would no doubt cause further discord amongst family members.

A person can contest a will on the basis that it is invalid by relying on one or more of the following grounds:

  • The will has not been correctly executed;
  • The testator lacked the necessary mental capacity;
  • The testator lacked knowledge or approval of the contents of their will;
  • The testator was subject to undue influence;
  • The will is forged/fraudulent.

The Court’s view is usually that of the will always being valid and the onus being on the person who wishes to challenge it proving otherwise. Under the Inheritance Act 1975, the Courts will take into account the applicant’s needs and resources and consider what would be reasonable for their maintenance. Unless the Court believes the will was made under duress or free from coercion of other persons, then the person challenging is required to prove this based on the above reasons.

With more and more people now marrying more than once and having children with different partners, the issue of contesting a will is rising. Recent Ministry of Justice figures show there has been a steep increase in the number of wills being contested in court, and many lawyers believe this is reflective of recent times with more complex relationships resulting in higher divorce rates and subsequent remarriages.

Have you come across recent cases where sibling rivalry is at the forefront of a contested will? How can one assess the needs of all parties fairly, given both the sentimental and monetary value of assets?

Share your thoughts on these issues in the comment section below.

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