Leaving a will: how to avoid conflict when dividing assets unequally

Thinking of dividing your assets unequally between your children in your will? Solicitors Ashfords LLP explain the steps you can take to avoid an unpleasant legal battle.

There are many reasons why you might want to leave more of your estate to one child than another in your will.

But no matter how sound your reasoning, the reality is that dividing your assets unequally in your will can lead to conflict and, in some cases, a court case.

And with soaring house prices meaning estates are worth more, conflicts between beneficiaries are on the rise.

So, what can you do to avoid prompting an unpleasant legal battle after your death?

How to make a cheap or free will

Reasons to split your will unequally

First, let’s look at some of the main reasons why you might not want to split your estate between your children – or at all in some cases.

The most common scenario is where one child has received more support during the parents’ lifetime than their siblings (for example, by helping them with a deposit on their first property), so a will can be the natural place to balance things out between them.

Parents may also consider their children’s personal circumstances when making their will.

If someone is in a difficult relationship, their parents might want to avoid potentially enriching somebody else through the back door, or one child might have significantly greater needs than another.

Why unequal wills are contested

But no matter how well-justified your reasons are, it can still become an issue amongst surviving family members when the contents of your will become known. 

Disappointed beneficiaries of a will, whether they are children of the testator or anybody else with a potential interest in the estate, could look to argue that the will in question is not valid.

For example, it could be argued that the testator was coerced, that they didn’t have sufficient mental capacity to make a will, or that the testator didn’t approve and understand the terms of the will.

In some circumstances, it may also be possible for disappointed beneficiaries to claim under the Inheritance (Provision for Family and Dependants) Act 1975 that the testator’s will does not make reasonable financial provision for them when factoring in such things as their relationship to the testator and their financial circumstances.

This is available to spouses, civil partners, cohabitees, dependants, and children of the testator.

Claims by adult children under the 1975 Act are becoming increasingly common, but they aren’t straightforward - especially where they are financially independent and do not have any disabilities.

For a claim for reasonable financial provision from a parent’s estate, the adult child will need to show that there is a “moral obligation” or “special circumstances” that justifies their claim.

In other words, there needs to be something more than a mere familial relationship and a financial need by the child.

What that extra something might be will depend on the case in question.

Putting your affairs in order: wills, power of attorney and paperwork explained

Steps you can take to prevent claims

There are steps you can take to minimise the risk of such claims arising.

If you think there’s a risk that the validity of your will might be challenged, you should have your will prepared by a solicitor who can ensure that it’s as robust as possible.

Self-drawn wills (and those by unregulated will providers) are far more likely to be challenged in the courts than professionally prepared ones.

Perhaps a simpler solution is to simply have an open and honest talk with your kids to explain the provisions in your will.

Such conversations, however uncomfortable they might be, will help to manage their expectations and give you all the opportunity to avoid potential disagreements ahead of time.

It will also engender a degree of transparency that can appease escalating tensions between family members.

Finally, it could help deter future claims as it will provide evidence that you knew and understood what was in your will, that you carefully considered the provisions in your will and knew of the assets you were disposing of and who was to benefit from them.

Mirror wills: how they work, the risks and the costs involved

Why you should consider a letter of wishes

These conversations will not, however, stop all disputes.

So, it may help to prepare a letter of wishes in which you can explain why you made your wills in the terms you have.

A letter of wishes can also help to deter potential 1975 Act claims by explaining why a child has been left assets in a particular way.

Another useful deterrent is to leave a child a gift of money that is conditional on them not making a claim against the estate.

While the above sets out the position under assets held in England, the position is substantially more complicated if your estate comprises assets in other countries.

So, it’s important to consider the laws of succession in the applicable country where your assets are held.

With careful and proper estate planning, the risks of any challenges to your will can be mitigated.

This article was written by Barny Croft, Partner and Adam Woodhouse, solicitors at Ashfords LLP. The views contained in this article do not necessarily reflect those held by loveMONEY.