There’s been a rise in the number of reported cases of people contesting wills. This has led some, incorrectly, to suggest that there’s no point in making a will. Rather than not making a will at all, and leaving the fate of your estate to very rigid rules laid down by statute, below are 11 practical steps you can take to help to protect your Will from being contested.
1. Meet the formal requirements for a will.
When writing your Will make sure you comply with the formalities set out in section 11 of the Wills Act 2007. Apart from minor exceptions, for a will to be valid it must meet the following criteria:
2. Understand the effect of the Property (Relationships) Act 1976.
The Property (Relationships) Act 1976 provides for your surviving spouse, civil union partner or de facto partner to choose whether to apply for a division of relationship property under that Act or to take what is left to them under your will, or, where there is no will, under the laws of intestacy. In deciding what to gift your spouse or partner under your Will you should take this into account. You will need independent legal advice if you aim to gift less than half of your estate to your spouse or partner.
3. Protect your estate from claims under the Family Protection Act.
IFor a person to bring a claim under the Family Protection Act (1955) they must firstly, be eligible to do so and secondly, demonstrate that the way in which a person’s estate has been disposed of fails to make reasonable financial provision for them. The court can take many factors into account, including a person’s financial resources, the size of the estate and any other relevant factor.
As such, if you are considering excluding or limiting the provision for any one of the following :
Alternatively it may be worth considering leaving a smaller gift (taking into account the potential costs of a claim and prospects of success) perhaps with a clause to say that if that person challenges your will then they forego their gift. While this in itself is unlikely to prevent a claim, it can discourage a person to bring a claim.
4. Take care to properly document promises made by you.
A person can make a claim against your Will under the Law Reform (Testamentary Promises) Act 1949 if you have promised to leave that person something in your will in return for services rendered or work done, and you have not kept that promise. For example, the person may have taken care of you when you were ill or looked after your property, and in return you may have promised to provide for the person in your will.
It may not be necessary to prove that a promise was made in writing. The court may be prepared to infer from the surrounding circumstances that there was a promise. If the court finds that such a promise was made then it can award the claimant payment out of your estate which it decides is reasonable, considering all the circumstances of the case. Documenting your promises will reduce the risk of this happening. Putting legal agreements including promises into writing is a really important thing to do anyway.
5. Ask a medical practitioner to provide a report about your “testamentary capacity”
One of the main grounds upon which wills are challenged is on the basis that a person lacked the necessary mental capacity to give instructions for and sign their will.
If you suspect there will be questions over your mental capacity, if you have had a diagnosis that could affect your mental capacity in the future or if you are elderly, ask a GP or suitably qualified medical practitioner to provide a report or letter confirming that you have testamentary capacity.
Testamentary capacity is a legal concept. Given the specific nature, it is best to have a lawyer request a report on your behalf to ensure that the medical practitioner knows precisely what they need to determine. The letter from your lawyer and the report from your medical practitioner would then be stored with your Will.
6. Store your will in a safe place.
You don't need to leave your Will with your lawyer, just make sure it is safe, and also make sure your Executor knows where to find it. Many requests to prove a Will in court (referred to as “Probate”) are made on the basis of either a copy will or a lost will. While some of these are accepted, many are rejected because where an original will cannot be found, there may be a legal presumption that it was deliberately revoked by the person who made it. In that case any earlier will, (or, where no such will exists, strict legal rules) may dictate how that estate is dealt with.
7. Keep detailed records of your wishes
Ensure that your lawyer takes detailed attendance notes of your meeting, conversations and instructions when they prepare your will.If someone wishes to contest a will then usually they will request a copy of your will file from the lawyer who prepared your Will.
The more thorough the notes of your wishes, and the more obvious it is that the terms of your will have been discussed in detail with you, and that you have received legal advice about your wishes the less likely it is that someone will successfully contest a will. If you are making any significant changes that have not been reflected in any previous wills you have made, discuss these with your lawyer. Again, the likelihood of a successful claim is reduced if there are statements recording the reasons behind your wishes.
8. Destroy any previous original will
Although in most cases any previous will may be revoked on signing your new and correctly executed will, provided that will has a revocation clause dealing with any earlier wills, once you have put a new valid will in place, ensure any old original wills and any copies you have of them are destroyed so as not to cause confusion on your death. This is particularly important if you believe people who were previously provided for but now you are removing from the will may find your old will among your possessions and use that to justify bringing a claim to challenge your will.
9. Protect yourself from the risk of undue influence.
If you believe that you are being pressured into making a will then talk to your lawyer, family, friends or anyone else who may be able to help and, if necessary, record your concerns in writing.
If you have concerns that someone will, unjustifiably, argue that you were forced or coerced into making a will, or that the provisions were not your true wishes, there are steps which you can take to avoid this.
If possible, ensure that anyone who benefits under the will is in no way involved in the will making process. If using a lawyer, book the appointment yourself, rather than relying on someone else to do this, ideally attend alone and be clear that the wishes are your own and ask your lawyer to make a clear attendance note.
10. Give your Will a regular 'health check'
The law and family circumstances change. Tax laws, births, deaths, marriages, divorces and even remarriages can all have an impact on your will and the extent to which any will reflects your wishes.
Once in place, review your will at least every few years and especially so if your personal situation changes e.g. on marriage, divorce or death, or if your financial position changes, for example, if you have provided for one child by gifting them a large asset in your Will but you subsequently sell it.
11. Invest in professional advice and drafting
Ultimately, the best protection is to have your will professionally prepared by a lawyer with estate planning expertise. Your lawyer should make your will clear and unambiguous and will consider your assets and your gifting wishes to work out the best, most secure way to achieve what you want to happen. You spend years working to build up your assets. It is well worth paying a relatively small cost for an experienced professional to ensure peace of mind and that you have done your best to safeguard your will and your loved ones’ interests.
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