Challenging a will
In this series of articles, we are looking at the main heads of cover provided within Comprehensive Executor and Inheritance Indemnity insurance. On this occasion we are looking at the risk of facing a challenge to the validity of a will.
The well-publicised case of Ilott v Mitson shows us that even where a will has been left that clearly expresses the deceased’s wishes it is still possible to face a legal challenge to the validity of such a will.
There are several ways in which a will can be contested, the grounds for doing so include:
- Fraudulent or forged wills
- Undue influence
- Lack of knowledge and approval
- Lack of valid execution
- Testamentary capacity
Litigation is often expensive and although in some circumstances legal defence costs can be met by the estate, this will be of little comfort to executors if the defence costs were to exceed the value of the estate.
If we consider that almost £2bn a year is left in wills to charitable causes and public awareness of the ability to challenge a will is on the increase through media coverage of cases, it is unsurprising that the number of challenges being made is increasing.
How can insurance help?
Whilst an insurance policy cannot do much to make an aggrieved relative feel better about being left out of a will, it can cover legal defence costs and courts awards for claims brought on the grounds listed above.
Comprehensive Executor and Inheritance Protection insurance will provide cover when there is a challenge against the validity of the will, by someone who is not named in the will, either because:
- the will is fraudulent or was not properly executed; and/or
- the Deceased did not have the proper mental capacity required to make the will, was subject to undue influence, did not approve the will or have proper knowledge of its contents.
With this cover executors can transfer the risks and associated costs of facing a legal challenge away from the estate over to an insurer for a known premium. Such cover also ensures that beneficiaries in receipt of their inheritance won’t have their awards adjusted assuming an adequate limit of indemnity has been chosen.
Where a professional organisation is providing estate administration services then ensuring your clients are aware of the existence of such an insurance policy may reduce the chances of being found to be negligent should your client act against you.
