Understanding Wills and Trusts: Why Choose a Lifetime Trust?

The Vulnerabilities of Wills

In our exploration of estate planning, it is crucial to understand the inherent vulnerabilities associated with wills. These vulnerabilities can lead to disputes and complications that may not arise with lifetime trusts.

1. Wills Become Public Documents — Trusts Do Not

Most people are unaware that a will becomes a public document once probate is granted.

How this works

Under the Non‑Contentious Probate Rules 1987, when someone dies:

1. The executors apply for a grant of probate.

2. The will is lodged with the Probate Registry.

3. Once probate is issued, the will is placed on the public record.

4. Anyone can obtain a copy for a small fee via the government’s online service: https://probatesearch.service.gov.uk

   
   

Practical consequences

• Disinherited family members can immediately see the will.

• Estranged relatives, former partners, journalists, and commercial data-harvesters can access it.

• Sensitive information — explanations, private bequests, personal letters — becomes public.

• The visibility of the will often triggers disputes that might otherwise never have arisen.

  
  

Trusts are fundamentally different

• Lifetime trusts do not go through probate.

• They are never filed with any public registry.

• Their terms, beneficiaries, and asset values remain entirely private.

  
  

Privacy alone prevents many disputes because people cannot challenge what they cannot see.

2. Trusts Are Far Harder to Contest Than Wills

There is a persistent misconception that trusts “cannot be contested” or “cannot be challenged after six years.” The truth is more nuanced — and more favourable to trusts than to wills.

Trusts can be challenged — but only on narrow grounds

A trust may be attacked only on limited bases such as:

• Lack of capacity at the time of creation

• Undue influence

• Fraud or sham

• Breach of trust by trustees

• Failure of formalities

  
  

These are much harder to prove than the grounds for challenging a will.

Trusts are not subject to the Inheritance (Provision for Family and Dependants) Act 1975

This is the single biggest structural advantage.

The Inheritance (Provision for Family and Dependants) Act 1975 applies only to the estate passing on death. Assets placed into a lifetime trust are outside the estate, so:

• Estranged adult children cannot bring a 1975 Act claim.

• Cohabitees cannot bring a 1975 Act claim.

• Dependants cannot bring a 1975 Act claim.

• Charities cannot be displaced by family members.

• Courts cannot rewrite the trust to achieve “reasonable financial provision.”

  
  

This is why many high-profile will disputes simply cannot occur with a lifetime trust.

The “six-year rule” — the exact legal position

There is no hard rule stating that a trust “cannot be contested after six years” as is sometimes stated in various provider’s marketing literature. However, the Limitation Act 1980 does provide:

• A six-year limitation period for claims for breach of trust.

• No limitation period for claims involving fraud or where a trustee retains trust property.

  
  

This limitation period applies to trustee misconduct, not to the validity of the trust itself. So the more accurate professional statement is:

A trust can be challenged, but the grounds are narrow, the evidential burden is high, and the 1975 Act does not apply.

The practical reality

In practice:

• Trusts are challenged far less often than wills.

• The privacy of trusts means potential challengers often never know enough to bring a claim.

• The absence of 1975 Act claims removes the most common source of litigation.

• The evidential burden for undue influence or sham is significantly higher than for will challenges.

  
  

3. Why Lifetime Trusts Avoid Problems That Wills Cannot

When we combine:

A. Privacy

Wills become public; trusts remain private.

B. Contestability

Wills are easy to challenge; trusts are difficult to challenge and immune from 1975 Act claims.

C. Structural Control

Trusts avoid probate, avoid remarriage risks, and avoid reliance-based claims.

We reach a compelling conclusion:

Most of the disputes that arise around wills — including the high-profile cases where courts override testamentary wishes — would not have arisen at all if the assets had been placed into a lifetime trust.

The Importance of Choosing the Right Estate Planning Tool

Selecting the appropriate estate planning tool is essential for ensuring that your wishes are respected and your assets are protected. Wills and trusts each have their advantages and disadvantages. However, for those seeking privacy and security, lifetime trusts present a compelling option.

Conclusion: Protecting Your Legacy

In conclusion, understanding the differences between wills and lifetime trusts is vital for effective estate planning. By opting for a lifetime trust, we can ensure that our assets are managed according to our wishes, free from public scrutiny and the potential for disputes.

This article is provided for general informational purposes only and does not constitute legal advice.

Footnotes

1. Non‑Contentious Probate Rules 1987; Probate Search Service: https://probatesearch.service.gov.uk

2. Inheritance (Provision for Family and Dependants) Act 1975, ss.1–2.

3. Limitation Act 1980, s.21(3).

4. Limitation Act 1980, s.21(1)(a)–(b) (no limitation period for fraud or where trustee retains trust property).