How to Prevent Someone Contesting a Will

Will and inheritance dispute solicitors at Evolve Family Law have substantial experience in writing wills, estate planning, inheritance claims and advising on probate. Their expertise enables the team to provide the specialist advice that Will-makers need on how to prevent someone from contesting a Will.

For expert Will writing advice, call our team of specialist Will lawyers or complete our online enquiry form.

Can a Will be contested?

Many of us hope we have protected our loved ones after our death by making a Will. However, making a Will does not stop someone from trying to contest its provisions after your death.

Even if a Will-maker signs a Will setting out where they want their property and money (referred to as their estate) to go, their express instructions in their Will can be challenged by either:

1. Alleging the Will isn’t valid.
2. Claiming the Will doesn’t make reasonable financial provision for a person who has a right to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The 1975 Act applies to estates in England and Wales.

Stopping your Will from being contested on grounds of validity

If you get your Will prepared by a specialist Will solicitor, it is less likely to face a successful validity challenge because a private client lawyer is highly experienced in Will writing and execution.

A Will challenger can claim that a Will is invalid for a variety of reasons:

1. The Will was not witnessed properly in accordance with the law on witnessing requirements.
2. The Will-maker was coerced or unduly influenced into making the Will.
3. The Will-maker lacked testamentary capacity to make the Will. For example, because of their age, dementia or other health condition affected their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they signed their Will.

It is part of the job of a Will solicitor to try to ensure that a Will is valid. They will therefore try to minimise the risk of a Will being contested on the grounds of validity by taking precautions. These include:

1. Giving clear advice on how the Will needs to be signed and witnessed.
2. Ensuring that the Will-maker’s instructions are taken, rather than relying purely on a family member or friend to pass on the Will-maker’s instructions as to what should be included in the Will.
3. If the Will-maker wants to make a completely different Will to their previous Will or an unusual Will (for example, leaving their entire estate to someone they have just met when the Will-maker has a close and supportive family) the Will lawyer can explain the potential for the Will to be challenged and can advise the Will-maker to write a letter to accompany the Will to explain the decision behind the new Will. Alternatively, an explanation can be included in a Will. For example, that provision in the Will has not been made for a spouse because of a separation. It is essential in those circumstances that family law advice is also taken, as a spouse can still make a claim against the estate unless a clean break financial court order is obtained.
4. Checking to see if there are any health or other issues that might enable someone to question whether the Will-maker lacked testamentary capacity when they signed their Will. If there are any question marks, it is sensible to be cautious and obtain a medical certificate to say that the Will-maker had the capacity to sign their Will. Although someone can challenge testamentary capacity even where there is a certificate, the claim is far less likely to be successful if the point was addressed when the Will was made.

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Reducing the risk that your Will can be challenged because it doesn’t leave reasonable financial provision

The best way that you can reduce the risk of your Will being challenged because it doesn’t leave reasonable financial provision to a potential claimant is to be honest with your Will solicitor.

Sometimes people are embarrassed to be upfront about their personal or financial circumstances. For example:

1. Not saying that they have a child from a previous relationship because of the child’s age and other family circumstances, or
2. Not mentioning a new partner as they don’t want family members to know about their partner, or
3. Not revealing that they have not obtained a divorce from a separated spouse, or
4. Not explaining the vulnerability of family members or their financial dependence.

Whatever you tell your Will solicitor is confidential. The lawyer cannot give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private. During your life, the contents of your Will do not have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair.

After a Will-maker has passed away and probate is granted, the Will is accessible as it becomes a public record. A Will solicitor can explain the options (such as the creation of a trust and writing a letter of wishes if the testator wants to keep things private after their death).

A lawyer specialising in Wills can advise on the potential reasonable financial provision claims that could be made against the estate. For example, your estate may be left to your second spouse, but your child from your first marriage may have a potential claim. Alternatively, if you leave all your estate to your children, a claim against the estate could be made by your former husband or wife because they were receiving spousal maintenance at the date of your death.

Tips on how to reduce the risk of a Will dependency claim under the 1975 Act

There are lots of things that a Will solicitor can advise on to reduce the risk of financial provision claims, including:

1. Creation of a trust during your lifetime.
2. Lifetime gifting.
3. Creating a discretionary trust in your Will.
4. Preparing a careful letter of wishes to accompany your Will so your trustees can exercise their discretion and hopefully avoid a dependency claim.
5. Taking family law advice, for example, capitalising spousal maintenance or taking out life insurance to cover any potential spousal maintenance claim against the estate.

In addition to advising you on potential claims against the estate, your Will solicitor can also advise on estate planning to make your Will as inheritance tax efficient as possible, after considering your family and personal circumstances.

For expert Will writing advice call our team of specialist Will lawyers or complete our online enquiry form.

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Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester.