Avoiding Disputes over Probate in Assisted Dying Cases
Key contact: Janice Powell
The recent vote in favour of the Terminally Ill Adults (End of Life) Bill was a historic and emotional moment for supporters of assisted dying. Although there will be months of examination and analysis before assisted dying becomes legal, this is a good time for business owners and high-net-worth individuals to become familiar with the potential impact of the Bill on estate planning – and on probate disputes.
Put simply, the practice of assisted dying would introduce new legal, ethical, and practical considerations for individuals making or updating their wills.
What assisted dying means for wills
1. Timing of the will
Assisted dying typically occurs after careful planning. This provides an opportunity for individuals to ensure their will is up to date and reflects their current intentions. A well-prepared will, created in advance of the time of assisted dying, can help prevent disputes about the deceased’s wishes.
2. Capacity and consent
To make a valid will, a person must have testamentary capacity, meaning they understand the nature and effects of their decisions. In the context of assisted dying, there may be greater scrutiny to ensure that:
• The individual was mentally capable at the time of making the will.
• Their decisions were made free of undue influence, particularly if family members or caregivers were involved in discussions about assisted dying.
Legal frameworks will undoubtedly require medical professionals to document the individual’s capacity, adding a layer of assurance that their will is valid.
3. Disputes over influence
Assisted dying might raise concerns amongst beneficiaries or other interested parties about undue influence or coercion. Family dynamics could come under scrutiny, particularly if substantial changes to the will coincide with plans for assisted dying.
Including professional witnesses, such as solicitors or medical practitioners, in the will-making process can help counter potential disputes by providing evidence of the testator’s independence.
4. Ethical and emotional challenges
Beneficiaries may have conflicting feelings about their loved one’s decision to pursue assisted dying, which could complicate how they perceive the estate distribution. Open conversations about both assisted dying and the contents of the will can help ease emotional tensions and ensure clarity among family members.
Practical steps for individuals considering assisted dying
1. Review and update the will
Individuals planning for assisted dying should ensure their will reflects their most current wishes. Outdated wills can lead to disputes and legal challenges.
2. Appoint reliable executors
Choosing executors who are trustworthy and impartial is critical to avoiding conflict. Executors may need to navigate sensitive issues, including handling any disputes arising from assisted dying.
3. Include advance directives
While not legally binding in the UK, an advance decision (or living will) can outline preferences for end-of-life care. This document can complement the will by clarifying the individual’s intentions.
4. Document intentions thoroughly
To mitigate risks of disputes, individuals should document their intentions clearly when making their will. Professional advice can ensure these documents comply with any future assisted dying legislation.
5. Seek legal and medical advice
Consulting solicitors and medical professionals ensures that both the will and decisions regarding assisted dying are legally sound and ethically supported.
What assisted dying could mean for estate planning
If legalised, assisted dying could also affect other aspects of estate planning beyond the will:
• Assisted dying could allow individuals to coordinate estate planning with their passing, minimising complications related to timing (e.g., trusts or life insurance policies).
• Knowing the timing of one’s death may enable individuals to optimise inheritance tax planning.
Please note: if beneficiaries perceive any connection between assisted dying and changes to the will, this could increase the likelihood of legal challenges.
Legalising assisted dying in the UK would add new dimensions to the process of making a will. It could provide opportunities for individuals to approach estate planning with greater intentionality, but it would also require robust safeguards to prevent disputes and ensure the validity of wills.
Professional guidance and thorough documentation will be essential to protect the interests of all parties involved and avoid probate disputes when the time arises.
If you have any questions on this issue, and navigating the process system during this delicate time, please contact our Head of Contentious Probate and Trusts team, Janice Powell, for an empathetic and confidential chat.
