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25 February 2016 | Comment | Article by Roman Kubiak TEP

How to protect your will from being challenged: 10 point checklist

There has been a notable rise in the number of reported cases of people contesting wills. This has led some, incorrectly, to suggest that there’s no point 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 10 top tips to protect your will from being contested.

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Find more information on our Contested Wills, Trusts and Estates department. Or if you want to discuss any issues raised in this article contact us today.

1. Know the formalities

Ensure you comply with the formalities set out in section 9 Wills Act 1837. Apart from minor exceptions, for a will to be valid it must meet the following criteria:

  • be in writing;
  • be signed by the testator, or by some other person in their presence and by their direction;
  • clear that it is intended to be a will;
  • the signature must be made or acknowledged in the presence of two or more witnesses present at the same time; and
  • each witness must sign the will in the presence of the testator.

Wills have been successfully challenged for instance where witnesses have signed the will but not in the presence of the testator; don’t fall into the trap!

2. Protect your estate from claims under the Inheritance Act

For a person to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 they must, first, 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:

  • spouse/civil partner or former spouse/civil partner;
  • partner;
  • child, whether adult or otherwise;
  • step-child or former step-child; or
  • anyone maintained by you, it is worth providing detailed reasons of why you are excluding or limiting what you are leaving to them.

Alternatively it may be worth considering leaving a small 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. This is known as a “forfeiture clause”. Whilst this in itself will not necessarily prevent a claim, it can discourage a person to bring a claim.

Your professional adviser can also discuss with you whether it is best to do this through a ‘letter of wishes’ which will not become a public document should a grant of probate be needed in your estate.

3. Ask a medical practitioner to witness your will and 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.

Capacity is time and issue specific and the test for testamentary capacity is laid out in the 1870 case of Banks v Goodfellow. Given the specific nature, it is best to have a solicitor request a report on your behalf to ensure that the medical practitioner knows precisely what they need to determine. This is known as following the “Golden Rule” and was laid out in the case of Kenward v Adams.

4. Store your will in a safe place

It amazes us how many requests for probate are made on the basis of either a copy will or a lost will. Whilst some of these are accepted, many are rejected.

That is because where an original will cannot be found, there is often 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.

If your solicitor is storing your will, ask for a copy and consider informing your executors where your will is stored for future reference. Also remember to inform your solicitor if you (or your executors/trustees) change address. Although wills are not normally amended for reasons of address changes alone, the solicitor can put a note in your will packet to prevent any problems on your death

5. Keep detailed records of your wishes

Ensure that your solicitor takes detailed attendance notes of your meeting, conversations and instructions when they prepare your will.

If someone wishes to contest a will then usually their first port of call is to request a copy of your will file.

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, along with the potential claims, 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 solicitor. Again, the likelihood of a successful claim is reduced if there are statements recording the reasons behind your wishes.

6. Destroy any previous original will

Although any previous will may be revoked on signing your new and correctly executed will, provided, and subject to jurisdiction, 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 are destroyed so as not to cause confusion on your death.

This is particularly important if you believe people who were provided for but now you are removing from the will may find your old will amongst your possessions and be encouraged to bring a claim to challenge your will.

7. Be aware of the pitfalls of undue influence

If you believe that you are being pressured into making a will then talk to your solicitor, social services, 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 solicitor, 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 solicitor to make a clear attendance note.

8. Keep up to date with the law

The law is always changing and adapting, particularly when it comes tax and estate planning. What may have been a tax efficient will five years ago may now be redundant. As such, you should ensure that your will, coupled with the law, continues to reflect your wishes

9. Don’t forget about your will

As with the law, family circumstances also change. 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 if your personal situation changes e.g. on marriage, divorce or death, or if your financial position changes, for example, if you provided for one child by gifting them a large asset that you no longer own (and your will has no valid substitute gift), you may want to consider amending your will so that child is provided for in some other way.

10. Instruct a professional

Ultimately, the best protection is often to instruct a regulated professional to prepare your will.

Your professional advisor should ensure your will is clear, unambiguous and that the new will revokes any earlier wills you put in place, assuming you want it to do so. Conversely, it may be that you have other wills in place dealing with foreign assets and, for that reason, you may want to limit the extent to which any new will revokes that will; all the more reason to use a professional.

Whilst there are many professionals who prepare wills, only a number are regulated by the Solicitors Regulation Authority or have professional indemnity insurance should things go wrong. It is also worth looking out for firms with members of STEP, a professional association for advisors dealing with all areas of trusts and estates.

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 utmost to safeguard your loved ones’ interests.

Get in touch

Find more information on our Contested Wills, Trusts and Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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