How do I reduce the risks of my Will being contested?

4th January 2019

This is an extremely emotive, usually case-specific, subject and this article is aimed at being a brief overview of the subject.

Anyone making a Will (known as the “testator”) is deemed to have “freedom of testamentary disposition”. In simple terms this means that you can dispose of your estate however you wish.

However, there are certain categories of people that can make a claim against an estate under the Inheritance (Provision for Families and Dependants) Act 1975 if they think they have been inadequately provided for. These categories of people include:-

a spouse or civil partner of the deceased
a former spouse or civil partner who has not remarried
a child of the deceased (including children of a non-marital relationship, an adopted child or a child as yet unborn)
a person treated by the deceased as a child of the family (ie step-children)
a person being maintained (wholly or partly) by the deceased immediately before the death
a person who was cohabiting with the deceased person in a relationship as their (unmarried) husband/wife/civil partner for at least two years immediately prior to their death

If you do wish to exclude somebody from your Will and you think there is a possibility that they will object, there are certain things you can do to try to reduce the risk of a claim. These are as follows:

Declaration and Letter of Wishes

Generally our advice is to include a short declaration in the Will which gives a “snapshot” of the situation, for example, “I have had no contact with X for 20 years and therefore feel I do not owe him/her any financial or moral obligation”. This proves that the testator has not just ‘forgotten’ that they may have had an obligation to that person in the past but has considered matters in detail before excluding them. It is not necessary to go into detail in the Will itself.

However, we strongly recommend that the testator also writes a letter of wishes to be kept with the Will. This letter should go into more detail but in a factual rather than emotional way setting out the background to the situation and saying exactly why they have decided to omit that person. In the event of a claim, this letter can then be produced as evidence that there was a good reason to exclude that person. Ideally, this letter should be handwritten by the testator, signed, dated and witnessed. If handwritten, it is much harder for somebody to claim foul play (for instance that somebody else typed the letter for the testator and forced them to sign it).

Forfeiture Clause

Sometimes, a person is not completely excluded from the Will but may be given a legacy or a lesser percentage of the estate than they might have wished for or expected. Once again, if that person falls into one of the categories above, they may make a claim.

However, in order to try to prevent a claim against the estate in this situation, it is possible to include a forfeiture clause which says that if anybody (or a named person) makes a claim against the estate, that person’s entitlement fails and this share is then divided between the remaining residuary beneficiaries. Once again, the testator can include a letter of wishes covering the background to any unequal split and explaining the provisions of their Will.

Diversion of Funds from an Excluded Beneficiary

Sometimes in a situation where a child is to be excluded, if the testator wishes, they may choose instead to include that child’s children (their grandchildren) instead. This may work as a deterrent in that to make a claim against the estate, the ‘errant’ child would essentially be claiming against his or her own children.

Video Recording

It may also be suitable in some circumstances for a video recording to be made at the time of signing the Will to allow the testator to provide a more detailed explanation of their reasons behind their Will provisions. This can be undertaken in an informal question and answer session and the recording stored alongside the Will.

Mental Capacity Assessment

In some situations, for example if the testator has certain medical conditions, is undergoing certain types of medical treatment or if the testator is simply advancing in age, our advice is to obtain a letter from a medical practitioner confirming that, at the point that instructions for the Will were given, the person concerned had the required understanding to make the Will.

Once again, this in an invaluable document to produce in the event that a Will is contested on the basis that the testator concerned lacked the mental capacity to make a Will due to their medication/medical condition/age.

Claim of Undue Influence

Many of our clients come into the office to give instructions for a Will with another family member for moral support, particularly where there have been upsetting circumstances leading to that person wishing to exclude another family member. It is therefore extremely important that, especially in a situation where the person providing moral support is included in the Will and somebody else is excluded, we see the person giving the instructions alone and document this.

This then gives the testator the opportunity to speak freely and for us to ensure that there is no coercion in relation to their Will instructions.

Summary

These are some of the methods we use to try to minimise the risks. They do not necessarily stop anybody making a claim but may prove to be a sufficient deterrent or a means of successfully defending a claim.