How to Minimise the Risk of Your Will Being Challenged

Inheritance disputes are not uncommon and can cause enormous distress within families. There are regular reports in the media of family conflict and legal battles over a deceased’s estate. One example, reported by Telegraph Money, involved a family in a bitter dispute after their mother’s estate was left to her much younger partner, leaving her children to challenge the Will. The Court ultimately ruled in favour of the partner, allowing him to live in the family home rent-free. These types of decisions underscore the importance of ensuring that your Will is robust and less susceptible to being contested.

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to claim against an estate if they believe they have not been adequately provided for in a Will. Eligible claimants include spouses, former spouses who have not remarried, children, anyone treated as a child of the family, and anyone financially maintained by the deceased. This Act aims to ensure that reasonable financial provision is made for those who were dependent on the deceased. To minimise the risk of a claim under the Inheritance Act 1975, it is essential to consider the needs of these people when drafting your Will. Explicitly stating reasons for any exclusions or limitations in a letter of wishes can also help support the validity of your decisions.

Outside of claims under the Inheritance Act 1975, a Will can also be challenged on grounds such as lack of testamentary capacity and undue influence.

Ensuring Testamentary Capacity

One of the primary grounds for challenging a Will is questioning the Testator’s testamentary capacity. To have testamentary capacity, the Testator must understand the nature of making a Will, the extent of their estate, and the claims of those who might expect to benefit from the Will. Ensuring that the Testator has the mental capacity to make the Will is crucial. This can be documented by having a medical professional assess and confirm the Testator’s mental state. Including a medical report with the Will can provide strong evidence that the Testator was of sound mind when the Will was created.

Avoiding Undue Influence

Undue influence occurs when someone pressures the Testator to change their Will in a way that does not reflect the Testator’s true intentions. This is a common ground for contesting Wills, especially in cases where significant changes are made in favour of a particular person, such as a new partner or caregiver. To prevent claims of undue influence, the Testator should make their Will independently, without the presence of beneficiaries. Consulting a Solicitor who is experienced in Wills and estate law can provide an additional layer of protection. The Solicitor can ensure that the Will reflects the Testator’s wishes and that no undue influence has been exerted.

Proper Execution of the Will

For a Will to be legally valid, it must be executed correctly. This means the Will must be in writing, signed by the Testator, and witnessed by two independent witnesses who are present at the same time. These witnesses should not be beneficiaries or spouses of beneficiaries under the Will, as this can lead to the Will being challenged. Ensuring that the Will is properly executed according to legal requirements can prevent disputes over its validity.

Clear and Detailed Instructions

Ambiguities in a Will can lead to disputes among beneficiaries. Clear and detailed instructions regarding the distribution of assets can help minimise misunderstandings and potential challenges. Specify who gets what and in what proportion, and provide reasons for any unusual or unexpected bequests. This clarity can help prevent disputes by providing a clear understanding of the Testator’s intentions.

Communication with Family Members

While it might seem counterintuitive, communicating with family members about your intentions can help reduce the risk of disputes. By explaining your decisions and their reasons, you can address potential grievances before they escalate into legal challenges. This does not mean you need to divulge every detail of your Will, but providing a general overview can help manage expectations and reduce the likelihood of disputes.

Use of a Letter of Wishes

A Letter of Wishes is a document that accompanies your will, providing additional context and explanations for your decisions. While not legally binding, a Letter of Wishes can guide your Executors and the Court in understanding your intentions. This can be particularly useful if you have made decisions that could be perceived as controversial or if you have excluded specific individuals from your Will. By clearly stating your reasons, you can help to prevent disputes and provide clarity.

Regular Updates to Your Will

Life circumstances change, and you must update your Will to reflect these changes. Major life events such as marriage, divorce, the birth of children, or the acquisition of significant assets should prompt a review and possible update of your Will. Regularly reviewing and updating your Will ensures that it accurately reflects your current wishes and reduces the likelihood of disputes arising from outdated or irrelevant provisions.

Consider a Discretionary Trust

In some cases, setting up a discretionary trust can be a way to provide for beneficiaries while retaining control over how and when assets are distributed. A discretionary trust can be instrumental in complex family situations or where there are concerns about potential challenges to the Will. By placing assets in a trust, you can appoint trustees to manage the distribution according to your wishes, reducing the risk of disputes.

Legal Advice and Professional Drafting

Finally, seeking professional legal advice and having your Will drafted by an experienced Solicitor can significantly reduce the risk of your Will being challenged. A Solicitor can ensure that your Will complies with all legal requirements, is clearly drafted, and accurately reflects your wishes. They can also provide advice on how to structure your Will to minimise the risk of disputes and can act as a witness to the execution of your Will, providing additional assurance of its validity.

If you need legal advice regarding drafting a Will or defending a challenge, please call us on 02476 231000 or email enquiries@askewslegal.co We treat all enquiries in the strictest confidence.

Please note, this article does not constitute legal advice.