Where and how best for individuals and families to resolve their business disputes privately
Speakers: Withers LLP: Chris Priestley, Stephen Ross, Hussein Haeri, Caroline Thompson, Leslie Perrin, Chairman, Calunius Capital
Q: Is a Will relatively easy to contest? How can I ensure my wishes are carried out?
A: There are a number of ways in which a Will can be contested. First, someone can say that the formalities of preparing and signing the document were not properly complied with. Secondly, there are many ways to challenge the detailed content of a Will (even if the document is accepted as validly signed) on the basis that it does not accord with what should have been put in place due to ‘fairness’ or because of promises that had been made to the person who is now challenging it.
Where a Will has not been prepared by professionals, or they have not given detailed advice on some of the potential issues that could be raised against the Will, then it is relatively easy for someone to come up with an argument for disputing the way the Will came to be finalised. It is often then a case of those who want to uphold the Will amassing as much evidence as possible to show that the Will and its content is proper. In some cases, there may need to be a lot of witnesses to present the full picture to the court in order to defeat the challenge.
Preventing disputes is better than trying to build a defence later on and after the event. To ensure that a person’s wishes are carried out, and their Will is not successfully contested in court, we use our experience to ensure that the potential lines of attack are anticipated and dealt with at the time. In many cases, the best defence to a Will challenge is to show that the person making the Will was advised on the potential attacks that might be made on what they chose to do and that these were taken into account when they made their decision to make a Will. Sometimes this may involve organising medical or foreign law advice to provide supporting evidence to satisfy the English court, in case of a future challenge, that there is no reason for the Will to be set aside.
Q: Are trusts now the most appropriate vehicles to own assets? What are the alternatives if any?
A: Trusts continue to be an appropriate vehicle for many clients and have a number of advantages in terms of protecting assets and providing for a fair allocation and distribution of the family wealth. Although there are a number of instances where family trusts are caught up in dispute, there are ways to prevent this happening with careful review of the structure. The cases that do go to court provide useful guidance to families and their advisors on how not to be the next reported case!
In some cases, alternative structures (to include corporate entities, foundations or partnerships) can offer similar benefits but in a different legal form. Some clients, in particular those from jurisdictions that do not have a history of trust law, may feel that those alternative forms are easier to understand and give them more clarity, and in some cases control, over what might happen in the future. But because some of these structures are new, in particular the use of foundations in some of the offshore jurisdictions, there is less certainty as to how the courts will resolve disputes if/when they arise.
In all cases, care needs to be taken to ensure that any form of wealth structure, be it a trust, company, foundation or partnership, works for the client and their family in terms of all of their relevant concerns and priorities, and that the position is reviewed regularly because tax laws change, family dynamics change, and what is most appropriate for a family at one point in time may not be so in the future.