Inheritance disputes are on the rise – with booming property prices and the complex structure of modern families being two likely major causes. Figures show that 116 Will-related disputes reached the High Court in 2015, a rise from just 15 cases in 2005. And this year there was also a significant development in the law relating to challenges to Wills when the case of Ilott was decided in the Supreme Court.
So what can you do to safeguard your Will? Unfortunately, there is no fail-safe way to protect your Will from legal challenges. However, there are steps you can take to reduce the chances of a successful claim being made against your estate.
1. Explain your decisions
Explain within your Will the rationale behind the decisions you have made. Clarify why the people you are leaving your assets to have been chosen, and why any particular person who might expect an inheritance has been left out. It helps if your explanations are reasonable and rational. For example, you may have excluded someone because you’ve already helped them financially in your lifetime. Or it could be that you want to financially assist a poorer relative ahead of one who is well off.
If circumstances allow it, it may also be best to discuss your plans with your loved ones now. That way they will not be shocked when your Will becomes public at a time already fraught with emotion. This should reduce the risk of their contesting the Will as an angry ‘knee-jerk’ response to discovering its contents.
2. Small gifts and avoiding payment patterns
Rather than exclude a close family member from your Will completely, if you are worried about how they will react, you could leave them a small gift instead. If you do leave a close family member out of your Will, it is prudent not to establish a pattern of giving them money while you are alive. Doing so could give them better grounds to contest your Will.
3. ‘No contest’ clause
A ‘no contest’ clause can be included in your Will to discourage disgruntled beneficiaries from challenging the Will in court. Such a clause will state that if a beneficiary makes a challenge and the court rules against them, they will lose their entire inheritance.
4. Establish a link to a charity
If you plan to leave money to a charity in your Will, it is worth establishing a link with the organisation by donating money while you are alive. Though there are no guarantees, it will be harder to contest a charitable bequest if there is evidence you supported the charity during your lifetime.
5. Confirm your ‘testamentary capacity’
Wills are often challenged on the grounds that the person lacked the required mental capacity to record their wishes at the time the Will was made. To mitigate this risk you can ask your GP (or another suitably qualified medical practitioner) to witness your Will and provide a report confirming you have ‘testamentary capacity’. It is always best to ask a solicitor to request such a report on your behalf, so the medical practitioner knows what to include in the report.
6. Destroy your old Wills
Providing your new Will is signed and properly executed, it will supersede any previous Wills. However, to avoid confusion, it is prudent to destroy any earlier Wills, especially when you have removed from your latest Will beneficiaries who were included in an old Will.
7. Create a trust (an alternative)
You may wish to consider creating a Will trust so that a trustee or group of trustees administers your estate after you are gone. Alongside the trust you can include a letter of wishes addressed to the trustees. Although this is not binding, it will guide the trustees over what you would like to happen to your estate. Although you can appoint a loved one as a trustee, it is usually best to appoint someone neutral and better qualified, ideally a solicitor. The trustees can make decisions on your behalf should a challenge to your Will under the Inheritance (Provision for Family and Dependants) Act 1975 arise.
Expert wills solicitors in Eastbourne, Hailsham, Bexhill and Hastings
Most important of all is the overarching principle of instructing a solicitor when you make or update your Will. Failing to understand the law is probably the single biggest risk factor likely to expose your Will to challenges, and a solicitor can help you to avoid the pitfalls.
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Or, for expert advice on contesting a will or making a claim against an estate, please contact our specialist contentious probate Partner:
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