Key takeaways
Unequal inheritances can trigger challenges
Unexpected distributions may lead to disputes after death.
Capacity evidence provides protection
Medical assessments can help defend against later claims.
Clear documentation supports intentions
Recorded reasons help explain and protect decisions.
Does your succession planning include unequal distributions to children?
Such a question is important when reviewing succession planning at all stages of life, but in later life it can involve additional considerations.
While parents can distribute their estates as they see fit, including leaving nothing to their children, decisions that favour one child over another can sometimes come as a surprise and may lead to legal challenges after death, even if the reasons for including such provision are not controversial.
If the will which has left this unequal provision is challenged, and has been prepared in later life, then questions surrounding testamentary capacity are more likely to be asked by disappointed beneficiaries.
Do not be offended if your adviser suggests having a testamentary capacity report prepared to sit alongside your will, and for a medical practitioner to act as a witness to your will. Such actions are intended to offer protection from post death challenges and are often done to comply with the principle of the golden rule.
The Golden Rule
Although not a legal requirement, the Golden Rule is a well-established legal principle.
It states that if a person is elderly, or is suffering from an illness, the person making the will should be assessed by a medical practitioner who should also act as a witness to the will.
Letter accompanying the will
We would also recommend the preparation of a letter setting out the reasons why the unequal provision has been made. This letter can be confidential and is usually stored with the will. The executors can decide whether to share the contents of the letter with the children, but it can be brought into evidence in the event of any claim against the estate.
A professionally prepared will
A professional adviser will ensure that the preparation of the succession planning documents required are appropriate and fit for purpose. For example, any later in-life-health conditions that might result in blindness or deafness, or difficulty reading documents, can be dealt with by a solicitor correctly drafting the attestation clause (the signing clause). They can also advise you on the wording and structure of the Will in light of the unequal provision being made for children, including provisions to ensure that any lifetime gifts are taken into account when calculating each child's final entitlement.
Comment
Making decisions about your estate, especially where children will receive different amounts, can feel daunting. With the right professional support, you can be confident that your wishes are properly understood, recorded and protected. Capacity assessments and discussions about the reasons behind your decisions are not there to challenge your choices, but to help safeguard them and reduce the risk of disputes for your loved ones in the future.
Find out more about our succession planning, wills, trusts and estates expertise here or contact us today to discuss how we can help.
This article is co-authored by Senior Associate, Josie Jones.
