The importance to a client of estate planning and properly drafted testamentary documents cannot be overstated. However, mistakes can be made -- we are all human after all, and the intricacies of an individual's final wishes can often lead to errors made by even the most seasoned of professionals.
Drafting a will is a personal and customized task. The size of the estate in question, the testator's age, capacity and the requisite detail involved in order to fulfill one's final wishes, all lead to the fact that each and every will is a complex and intricate instrument requiring heightened care and attention.
Mistakes in drafting are by no means the most common ground upon which claimants to an estate raise issue. Indeed, most claims arise on the basis that the testator lacked the requisite capacity to instruct in the creation, or execution of their will.
The test for capacity is well settled, stemming from case law dating back to 1870, which provides that a testator must have a 'sound and disposing mind' in order to create a valid will. The test rests upon several factors which can be found here.
Of course, capacity and mistake are not the only grounds upon which a potential claimant can take issue - due execution, fraud and undue influence are also popular grounds upon which a will may be challenged.
For those who are worried that their will may be the cause of future family disputes, it is important to note that the vast majority of wills remain unchallenged; however, the frequency of challenges is increasing.
Some of the factors leading to a higher proportion of challenged wills include:
- A poor economic climate which puts greater pressure on estates as beneficiaries rely more heavily upon their anticipated inheritance to ease personal financial burdens. If a beneficiary feels slighted by a will, it may prompt legal action. A recession would reduce the value of many estates, leading to an increased demand for a diminishing pool of assets;
- The proliferation of more complex family structures, including blended families, has led to an increase in the number of potential claimants to an estate. Also, as families comingle, resentment and hostility can brew in regards to who feels entitled to make a claim against an estate; and
- More individuals are choosing to prepare their own wills, often called 'Do-It-Yourself' wills. Such documents naturally lead to a greater chance of creating an invalid will which may result in infighting among beneficiaries who have differing versions of what they believe the deceased's last wishes were.
While this is by no means an exhaustive list, one can add that there are simply a greater number of wills being executed, as the aging population gives rise to more estates being passed on after the death of a family member. The increase in the sheer volume of testators will result in a higher number of contested wills, even without taking into consideration the above mentioned factors which lead to greater frequency of will challenges.
Intertwined with the aging population is a rise in incapacity generally. Coupled with a growing knowledge of the effects of conditions which lead to mental deterioration, courts can expect a growing number of estate challenges based on more nuanced arguments founded upon contemporary medical studies which may undermine previously sound case law.
Practitioners need to advise litigious beneficiaries of the downfalls of litigation generally, such as the overwhelming emotional and monetary costs involved. These costs are exacerbated by the fact that, in estate litigation, the opponent is likely related to the claimant in some form, and the effects of litigation within a family are often devastating.
*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.