You've Made Your Will But Can It Be Challenged?

Once you’ve made the important decision to make your Will it can be a good idea to discuss your intentions with family members to avoid any surprises when the time comes, if you wish to.

Of course you are free to pass your assets to whoever you wish when you die but there are certain individuals, if excluded, who can make a claim on your estate. It is important to understand and recognise these individuals and take steps to reduce the chance of any future claim being successful.

Writing your Will

Once you have made the important decision to write your Will a Solicitor or other legal professional can help you formulate your Will. As well as discussing your requirements we can also advise and highlight any potential claims on your estate.

During the meeting, your mental capacity will be assessed so that you can confirm your wishes for your Will.  If it is necessary, a capacity report can be obtained from your GP to confirm you have the required mental capacity.

It is also important, if possible, to meet and discuss your requirements alone so that the issue of coercion or undue influence is not a factor, should your Will be challenged after your death.

Throughout the meeting, detailed notes are taken to understand your wishes and advise on the implications of how you wish your estate to pass on your death. If you already have a Will, your current wishes will be taken into account and again advice given on the changes you want to make to ensure you fully understand the implications of any changes. Detailed attendance notes are also prepared following the meeting.

If, after discussing your wishes, it is clear that you wish to exclude someone who can make a claim on your estate, the attendance notes are vital in documenting your wishes and also confirming that you have the required mental capacity to write your Will.  The attendance notes also confirm who was present during the meeting.

The most common claim on someone’s estate is made under the Inheritance (Provision of Family and Dependents) Act 1975. A claim would be made under this Act on the basis that no financial provision has been made for an individual or that any financial provision made is, in their view, unreasonable. It should be reiterated that there are only certain individuals who can bring a claim under this Act.

What can be done to avoid potential claims?

There is nothing to stop a person making a claim on your estate but there are steps you can take to perhaps prevent a claim being successful.

You could consider leaving a cash gift in your Will to anyone that you were considering excluding. This does not mean they cannot make a claim but it may make it more difficult for them to argue that reasonable financial has not been made for them.

When discussing your requirements and it becomes apparent that somebody is being excluded who could contest the Will and make a claim, it is always best practice to prepare a letter to clearly set out the reasons why you have made the decision to exclude this person.  This is so that if a claim is made the letter is evidence that the exclusion is intentional and not an oversight. The letter is signed and dated when you sign your Will and is stored with your Will and would be produced as evidence should a claim be made.

From a personal perspective a Will that I had prepared for a client was challenged when the client passed away but because of detailed attendance notes and carefully prepared letter that was stored with the Will, the claim was ultimately unsuccessful and the clients last wishes were fulfilled as they would have wanted.

Storing and Registering your Will

Once your Will has been prepared along with any letters to be stored with your Will, it is vital that your Will and the letter, is securely stored for when the time comes. We offer a secure storage facility at no cost to you so you have the peace of mind that the Will is easily accessible when required and is protected against loss and damage.

All of our Wills are also registered on the National Will Register which, as well as being an extra level of security, also ensures your most recent Will takes effect.

Finally, it is clear to see that there is much more to writing your Will than simply deciding who is to inherit your estate on your death. It is essential therefore that legal advice is sought when discussing and preparing your Will to ensure that as far as possible your wishes are carried out.

Contact Waldrons Solicitors

We provide free Will reviews on Wills we have prepared included in the fixed fees and offer safe and secure storage of your will at NO COST. Get in touch with Waldrons’ expert Wills solicitors today for assistance writing your Will.