When we plan for the future and made our wills, we trust that our family and other loved ones will respect the wishes set out in that will. Recently, however, there has been a significant increase in reported cases of people challenging wills.
People contest wills for all sorts of reasons, many are legitimate but some are driven by the high emotions that occur with grief. Sadly, it is not uncommon for families to have disagreements after losing a loved one, and disappointments or misunderstandings about wills can escalate quickly.
No solution will entirely remove the risk of disagreements over your estate. However, below are some steps that you can take to significantly reduce the chances of someone contesting your UK-based will.
Make Sure Your Will Complies With the Formalities
It is important to ensure that you comply with the requirements set out in the Wills Act 1837. For your will to be legally valid, it must fulfil the following criteria:
- be made in writing;
- be signed by you or by some other person in your presence and under your direction;
- be evident that it is intended to be a will;
- you must sign the will in the presence of two or more independent witnesses at the same time;
- each witness should also sign the will in your presence.
Failure to follow these requirements may invalidate your will and may leave it open to challenge.
Store Your Will Safely
Make sure your legal executors know where your will is and have access to it. Where an original will cannot be located, there is often a legal presumption that it was intentionally revoked by the person who made it. In such cases, any earlier will, or where no such will exists, strict legal rules may decide how that estate is dealt with.
Consider asking your solicitor to store your will and ensure that the executors are aware of this.
Update Your Will Regularly and Destroy Previous Wills
It is sensible to have your will and any associated arrangements reviewed by a solicitor every five to ten years, or when your family circumstances alter. Births, deaths, marriages and divorce can all have an impact on your will. Similarly, the law is constantly changing and a previously tax efficient will made five years ago may no longer provide the same tax benefits. A solicitor experienced in will planning can advise whether your tax planning arrangements are still appropriate for current legislation.
If you have made a new will, you must destroy all copies of any previous ones. Otherwise, it may be difficult for your family and/or executors to determine which will is the correct one.
Consider Your Testamentary Capacity
Testamentary capacity refers to whether or not an individual has the mental capacity necessary to make a will and understand the effect it will have. If there is any uncertainty as to whether you were in sound mind at the time that your will was produced, this could leave your estate exposed to a dispute later on.
Think about whether there are any factors that might cause someone to question your mental state. For example, anyone writing a will who is elderly, in the early stages of a condition such as dementia or Alzheimer’s disease, or who is affected by another serious mental health condition may need to take further safeguards. Your solicitor might recommend that you ask a GP or suitably qualified medical professional to provide a report or letter confirming that you have the necessary mental capacity to write a will.
Be Mindful of Potential Claims Under the Inheritance Act
Under the Inheritance (Provision for Family and Dependents) Act 1975, specified individuals have the right to claim your estate if you haven’t already provided for them in your will. If you are planning to exclude a close family member (which includes someone you have treated as a close family member, for example, a stepchild or co-habituating partner) from your will, you will need to plan for this very thoroughly.
It may be that you have a sound reason for excluding someone from your will. In such circumstances, we recommend that you speak to an experienced solicitor about it who can advise you on any extra precautions you may wish to take, including certifying your testamentary capacity and providing detailed clear reasoning behind your choices in a letter of wishes.
Alternatively, it may be worth considering leaving them a small gift attached with a no-contest clause (also known as a forfeiture clause). Under such a clause, the person who is receiving the bequest will forego their entitlement if they challenge the will. This in itself will not necessarily prevent a challenge, but it can discourage a person from doing so, especially if they have a weak chance of success in any claim.
Talk to Your Family About Your Will
Your will does not need to be a secret. In fact, it is much better to be open about your wishes for your estate and any trusts you have planned. Many will-related disputes result from individuals assuring family members that they will be given an inheritance and then writing something different in their will.
It is preferable to inform your family what to expect from your will so that there are no surprises for anyone at the time of your passing. It will also allow you to set out your wishes and explain why you have made the choices you have made. Telling people in advance what to expect from your will won’t rule out the chance of a dispute, but it can significantly reduce the likelihood of this occurring.
Finally, consider writing a letter of wishes, setting out the reason for certain decisions or ensure that your solicitor takes detailed attendance notes of your meeting, conversations and instructions when they prepare your will so there is a written record of your wishes. Again, putting down the reasoning behind your wishes in writing should reduce the probability of a successful claim.
Appoint a Qualified Solicitor
The most important thing is to instruct an experienced qualified solicitor to prepare or review your will. Your solicitor will be able to make sure that your will is unambiguous and that there are no factors that might bring the validity of your will into question. Investing in a professionally drafted will can dramatically reduce the likelihood of your will being challenged in the future. If you would like to discuss making a new will or would like us to review an existing will, please contact our experienced Wills Specialist team or email us.
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