Katie Alsop explains how to minimise the likelihood of your will being challenged.
Contentious probate disputes are increasingly being featured in the news, and it’s certainly a growth area. This causes us to question the reason for both the number of claims that are being pursued, and how they can be avoided.
As the general public becomes more aware of the ability to challenge wills, or make claims for reasonable financial provision from a deceased’s estate, it follows that more claims will be pursued and, in some circumstances, issued at court and progressed to trial.
Although it is difficult to create a watertight situation where a will couldn’t be challenged or reasonable financial provision sought from the deceased’s estate, there are steps that can be taken to limit the possibility of litigation.
First step: make a will
Research has shown that over half of UK adults have not written a will (source: Unbiased). For these people, the intestacy rules will apply when they die. The intestacy rules are prescriptive and don't take account of modern structures, in which families co-exist with one another, and couples cohabit without marrying. Many assume that the surviving partner will inherit the entire estate, but that’s not the case.
The best way to ensure that your estate is distributed in accordance with your wishes and expectations is to make a will. This process need not be expensive, and the cost of doing so is likely to be a drop in the ocean compared with the cost associated with challenging a will and the litigation that follows.
Make it as watertight as possible
There are numerous grounds on which a will can be challenged, so to afford as much protection as possible for your wishes being carried out, it’s advisable to instruct a solicitor to prepare your will. In the event of a dispute, the parties will turn to the will file.
It is likely to be an uphill struggle to challenge the will if it can be shown that a solicitor:
- made all of the relevant and necessary enquiries
- documented the reasons for any decisions made
- drafted the will in accordance with the testator’s instructions
This does, however, need to be done within the context of the testator having the relevant testamentary capacity to make a will.
Testamentary capacity report
If a solicitor has any doubts whatsoever as to the testator’s testamentary capacity, they should obtain a medical report to confirm the position. This will further add to the weight of evidence.
It’s clear that a supportive will file and a positive testamentary capacity report would make a challenge to a will on the grounds of lack testamentary capacity, or want of knowledge and approval, more difficult.
Get a professionally drafted will
Wills that are made without the benefit of a solicitor typically cause more disputes than others. This is due to the lack of an independent party to verify the circumstances surrounding the preparation and execution of the will.
It is also usual in these cases that the will has been prepared by a family member who might also be a beneficiary, which again removes any ability for an independent account to be given. This has the result that the will is more exposed to a challenge.
Be open, where possible
It’s helpful to ensure that those around you are aware of your intentions to remove any element of surprise on your death. If you have taken the decision not to provide for a family who might expect to benefit from your estate, such as a former spouse or dependant, it’s prudent to write a letter at the same time as drafting your will to explain the reason for that decision, or at the very least, acknowledging that you have taken such a step and that the will is a correct reflection of your intentions.
Similarly, it is also helpful if a previous will has been departed from and where the new will is significantly different, to write a side letter to explain the reason for that. This, again, is evidence that would make it more difficult to challenge a will.
In circumstances in which a beneficiary or family member feels that they have not received ‘reasonable financial provision’ from your estate, there is an ability to make a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, providing they are eligible as set out in the Act.
Consider a ‘sweetener legacy’
If you have concerns that your estate is likely to be subject to such a claim, there are ways that you can attempt to minimise any impact it might have on your estate.
For example, a fund could be set aside specifically for settling any claims that are made pursuant to the Act, whereby the executors and trustees of your will would be left instructions as to the purpose of that fund and the anticipated recipients. Or you may wish to include a legacy within your will, but make it conditional on the beneficiary not bringing a claim (a ‘sweetener legacy’).
That’s not to say that a claim couldn’t be brought by a disappointed beneficiary; but it may act as a deterrent.
Another option may be that you take out a life policy during your lifetime which, generally speaking, falls outside of your estate. The proceeds from that policy could then be applied towards settlement of any claims brought under the Act and protect your estate and the intended beneficiaries from the claim, both in terms of the sum payable to the disappointed beneficiary, and the costs associated with it.
Documenting wishes, intentions and thought processes need not be a complicated or expensive task. These simple and proactive steps will ensure that action is taken to minimise the prospects of a challenge to a will, and will protect your estate from a claim.
About the author
Katie Alsop is an associate at Wright Hassall LLP.
See also: Proprietary estoppel in contested wills