5 Steps to Protect Your Will From Being Challenged
It is becoming more common for disputes to arise concerning wills and more and more of these type of disputes are ending up before the courts. This can be incredibly distressing for the surviving family and can prove very costly to the estate of the deceased. Therefore, we have produced a short list of simple steps that can be taken to help guard against such disputes.
- Have your will prepared by a suitably qualified solicitor. When preparing a will, a solicitor will normally keep detailed records of the instructions they receive, together with copies of any correspondence between them and the testator. If a testator chooses not to provide for someone in their will a solicitor will normally ask why, and explain the potential consequences of this. They will also be on the lookout for any potential problems with those instructions, such as a lack of capacity or influence by a third party. Whilst ‘DIY wills’ made without the assistance of professionals can be a cheaper alternative, they can leave the will more vulnerable to challenges regarding its validity and can also be unclear in their interpretation which can cause disputes e.g. The testator leaves their car to person X, but they have two cars at their death! Instructing a professional to prepare your will should reduce any ambiguity and uncertainty that may otherwise arise as to both the creation and contents of the will, and ensure that the necessary formalities have been properly complied with.
- Talk to the beneficiaries in person regarding the contents of the will as this can ensure they understand your reasoning and may reduce the likelihood of a challenge to the will at a later date. By making sure that individuals are informed of your wishes, it is less likely that beneficiaries will be shocked or dissatisfied when the will is read as they already know your wishes and intentions. We would also recommend including a letter with the will which explains the decisions that have been made, in order to enable the beneficiaries, or people who have been excluded from the will, to understand the proposed distribution of the estate. This can sometimes appease any disgruntled beneficiaries by providing an explanation to accompany your wishes.
- You could insert a no-contest clause in the will, which means that if a beneficiary were to contest the will in order to seek a greater share, they would forfeit any interest given to them in the will. Whilst it would still be open to the disgruntled beneficiary to challenge the will these clauses can deter individuals from bringing a claim, and may be advisable in certain circumstances if a dispute seems likely.
- It is common for wills to be challenged on the grounds that the testator lacks testamentary capacity to create a will. If you have been diagnosed with an illness which may affect your mental capacity in the future or if you are elderly, it is a good idea to get a medical practitioner to write a report or letter which confirms your testamentary capacity. Such a report is likely to deter anyone looking to challenge the will on this basis.
- The appointment of the executor/executors of the will should be carefully considered. If multiple executors are appointed it is important that they are all on amicable terms to aide with the expeditious and effective distribution of the estate as any decisions they make must be unanimous. Furthermore, executors are under a duty to act impartially, therefore it might be prudent to consider their relationship with the beneficiary/beneficiaries or those excluded to reduce the risk of disputes and delay in the distribution of the estate. Sometimes it may be better to appoint an independent party or a professional to ensure your wishes are properly carried out.
This area of law is a complex one and the right advice should be obtained if you are thinking or removing a beneficiary from an existing will or disinheriting somebody who might expect to be a beneficiary. If you require any advice on this area of law please call a member of our Private Client team on 01695 574 201 or email us for further information.