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6 Simple Steps to protecting your will against challenges30th August 2019 Will Disputes
We previously blogged about 6 circumstances creating contested wills. A challenge to your will can mean that your final wishes are not followed, or that a large part of your estate is eaten up in the costs of litigation, which is obviously not what you envisage when you are trying to get your final affairs in order. As such, listed below are 6 steps to consider in order to try and protect against a challenge to your will.
1. Firstly it is important to have a will drafted by a professional. 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.
2. It may also be prudent to include a letter to accompany 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.
3. Further to this point, talking to beneficiaries in person regarding the contents of the will can ensure clarity of understanding 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.
4. 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.
5. 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.
6. 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.
Contesting a will can be a lengthy and expensive process, not only from a financial perspective but also from an emotional viewpoint as it can cause great distress for the beneficiaries of your will. Therefore, it is important to consider taking some simple steps to reduce the likelihood that your will may be contested and to ensure that your final wishes are fulfilled.