Will disputes are increasingly common. Principles that the law applies in determining a will dispute include:

1. The person making a will has a general right to determine to whom they will gift their property on their death. This principle is called ‘testamentary freedom’.
2. That principle is subject to the moral obligation that a person has to their partners, former partners, children, and others who have been dependent on them at some point to ensure they are resourced sufficiently.

The test is whether a claimant needs further provision for their “proper maintenance, education or advancement in life” such that the court should interfere with the will-maker’s wishes.

Factors taken into account include the nature and length of relationship the claimant had with the will-maker, size of the estate, competing claims by other persons on the estate, each claimant’s own financial resources, illness or disability and age.

If a claimant has engaged in ‘disentitling behaviour’, a court may find that they have no right to any provision from an estate. What constitutes disentitling behaviour will depend on all the facts however the behaviour generally needs to be more than simple estrangement.

Any property given away in the last 3 years of a person’s life can be considered by a court to be “notional property” of the estate that should be taken into account in determining claims.

The skill with which your will is drafted and the advice you receive can be critical in protecting your wishes regarding who shares in your estate. Similarly if you need to challenge a will where your needs have not been considered properly, you need the advice of a good lawyer knowledgeable in this area of law.

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