How to avoid challenges to your Will

Can I contest a will?

Once you have written your Will, you will want to ensure that your wishes will be carried out as you intended

So how can you ensure that this is the case and no one challenges your Will? We look at what it means to challenge a Will and what you can do to minimise the chances of it being contested after your death.

What happens when a Will is contested?

If someone was to successfully contest your will, this could delay the distribution of your money and property to your beneficiaries, until the dispute has been resolved.

Can someone challenge my will?

Unfortunately, there is no way to guarantee that your Will won’t be contested after your death. If someone chooses to challenge it, there are a few ways in which they could try to contest your will.  However, there is a limited category of people who would can contest a will, and there are also various specific grounds.

One common ground is the assertion that you did not have mental capacity when you made your Will.  Another ground, which is harder to prove, is that there was undue influence exerted over you, i.e. you were persuaded or coerced by a third party into making your Will is a certain way.

Wills can also be declared invalid if the signing process was not carried out correctly, i.e. it was not correctly witnessed.

On other cases, Wills can sometimes be found to be altered or written fraudulently.

Claims can also be brought against your estate by certain individuals for ‘reasonable financial provision’ if they have been excluded from your Will, but were being supported by you financially before your death, e.g. a co-habitee, spouse, or a child of the family.  In the event that you intend to disinherit a person who may have a financial claim on your estate, your Solicitor will recommend that you write a separate ‘Statement of Reasons’ to be left with your Will, explaining why you have not made any financial provision for that person.  The existence of this document will not mean that a financial claim will not succeed, but it is helpful and persuasive evidence for the Court to take into account when deciding the merits of any claim.

How to prevent a will being contested

If you believe that there is a real possibility that your Will is likely to be contested after your death, your Solicitor should advise you of the following options to minimise the risks.  These include:

Obtaining a medical assessment of your capacity to make a Will (often referred to as ‘Testamentary Capacity’)

If you are suffering with memory problems, or you have been diagnosed with a medical condition which affects your mental capacity, such as Alzheimer’s Disease, your Solicitor will recommend that an independent medical assessment of your capacity to make a Will is obtained before the Will is signed.  In the event that your Will is disputed after your death on the basis that you lacked capacity to make it, the existence of contemporaneous medical evidence obtained at the time the will was made will be extremely beneficial in rebutting such a claim.

Unfortunately, it is often the case that, in the circumstances where a child or close family member is disgruntled due to being excluded from the Will, challenges are made to the Wills of people who had no issues of mental capacity when the will was made.  However, in the case of elderly and vulnerable clients, and where there is a departure from the terms of an earlier will, obtaining a medical assessment may be recommended by your Solicitor as a ‘belt and braces’ approach.

Include a no-contest (Forfeiture) clause in your will

This is a clause that can be included in your will in an attempt to prevent a beneficiary from contesting your will. The ‘no-contest’ clause will state that if a beneficiary challenges the Will because they are unhappy with their inheritance, he or she will forgo the gift.  This can sometimes act as a deterrent to contesting a Will.

These types of clauses have to be carefully drafted in order to be legally binding and you should obtain specialist legal advice before proceeding further.

Have your Will professionally drafted by a Solicitor

A Will should be drafted in a way which is as clear and unambiguous as possible, so that it cannot be interpreted in any other way.  It may be tempting to write your will yourself using a DIY Will kit, but if you make a mistake when writing it, this will not become apparent until after your death, when it will be very costly to sort out.  For this reason, you are strongly advised to instruct a Solicitor who specialises in Will drafting to prepare your Will for you.

Having a solicitor draft your Will also significantly reduces the risk of a claim of ‘undue influence’ after your death.  Your instructions will be taken by a Solicitor without anyone else present in the room to enable you to speak freely and without influence from any other person with an interest in your estate.

It will also reduce the likelihood of anyone claiming that your Will was forged or made fraudulently. A Solicitor will keep written records of the meetings where your Will was discussed and also of the act of signing the Will.

Your solicitor will draft the Will for your approval, and will then arrange to oversee the formalities of having the same signed and witnessed.

Rosemary Johns, Partner at Birchall Blackburn Law says: “It is very important to ensure that you have your Will professionally drafted by a Solicitor who is STEP qualified to ensure that there is absolute certainty as to your wishes after your death, and to reduce the possibility of a successful challenge to your Will”

For more information on wills, please see our page here.

SFE – Solicitors for the Elderly website.

Related blogs on wills, here.

Sources:

https://www.hughjames.com/news/comment/2013/02/how_to_contest_a_will/#.WzYpk9JKiUk

https://www.elderlawanswers.com/preventing-a-will-contest-6627https://sfe.legal/2018/04/19/34552/