Most of us like to think that we have protected our loved ones after our death. That may be by taking out life insurance, paying into a pension that includes a spouse or partner pension if you pass away before your husband or wife , or simply making a Will. However, none of these actions may prevent someone contesting your Will after your death. In this article, private client and Will solicitor, Chris Strogen, looks at how to best prevent someone from contesting a Will.
Can you contest a Will?
Most people think that if they have made a Will setting out where they want their property and money (referred to as their estate) to go to, that their express instructions in their Will can’t be ignored or overridden. However, a Will can be challenged. There are two potential ways a Will can be contested:
- An allegation that the Will isn’t valid.
- An allegation that 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. This Act applies to estates in England and Wales.
Stopping your Will 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 challenge that the Will isn’t valid.
A Will can be said to be invalid for a variety of reasons, such as:
- The Will wasn’t witnessed properly in accordance with current witnessing requirements.
- The Will maker was coerced or unduly influenced into making the Will.
- The Will maker lacked testamentary capacity to make the Will. For example, because of age or dementia or another health condition affecting their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they decided to make their last 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, such as:
- Giving clear advice on how the Will needs to be signed and witnessed, and if you are planning to get the Will witnessed remotely because of COVID-19, clearly explaining if you can do that and how to comply with remote Will witnessing regulations.
- 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.
- If the Will maker wants to make a completely different Will to their previous Will or a Will that is perhaps unusual (for example, leaving their entire estate to someone they have just met when the Will maker has a close and supportive family ) then explaining the potential for the Will to be challenged and helping the Will maker 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 hasn’t been made for a spouse because of a separation. It is important that family law advice is also taken as a spouse can still make a claim unless there is a clean break financial court order in place.
- Checking to see if there 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 has capacity. 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 at the time that the Will was made.
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Reducing the risk 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 totally honest with your Will solicitor.
Sometimes people are embarrassed to say that they have a child from a previous relationship because of the child’s age and other family circumstances or don’t mention a partner as they don’t want family members to know about their partner. Whatever you tell your Will solicitor is confidential and they can’t give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private and the contents of your Will don’t have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair and, in addition, after death a Will becomes a public record.
A Will solicitor can advise on potential reasonable financial provision claims that you may not be aware could be made. For example, your estate may be left to your second spouse but your child from your first marriage may have a potential claim. Alternatively, you may leave all your estate to your children but a claim is then made by a former husband or wife against the estate as they were in receipt of spousal maintenance payments at the date of your death.
There are lots of things that a Will solicitor can advise on to reduce the risk of claims, including the:
- Creation of a trust during your lifetime.
- Lifetime gifting.
- Creating a discretionary trust in your Will.
- Preparing a careful letter of wishes to accompany your Will so your trustees can exercise their discretion and hopefully avoid a dependency claim.
- 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 IHT planning so your Will and estate planning is as inheritance tax efficient as possible, taking into account your family and personal circumstances.
We are Cheshire Will Solicitors
Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester but we also offer remote meetings by telephone appointment or video call.