Most people are aware of the importance of having a will in place, to ensure that financial, property and other assets are passed on in accordance with their wishes after they die. Unfortunately, this won’t prevent anybody attempting to bring a claim against an estate once you have passed away.
Here, Katie Lofthouse from our dispute resolution team, outlines the steps you can take to make it harder for any potential successful claim to be made against your will.
Comply with the formalities
It is vital that you are familiar with the formalities required by the Wills Act 1837. These can be found in section 9 of the Act. If any of the formalities are not complied with, it will affect the validity of your will.
Provide clear and detailed instruction
If you chose to disinherit a person who would normally be expected to be included in your will, for example a parent disinheriting a child, it is important to explain to your solicitor exactly why you are choosing to do this.
This will allow you solicitor to make a detailed note as to the reason behind any decisions you have made in relation to your will. The note may be referred to if the disinherited person then attempts to challenge the terms of your will.
It may also include certifying your testamentary capacity and setting out the reasons behind your decision in a Letter of Wishes.
Carefully consider who you wish to benefit from your will
If you choose not to leave anything to either your spouse, your children or anyone who is financially dependent on you, they may be able to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
It may be wise to leave them something to discourage them from making a larger claim against your estate should you not leave them anything at all.
If you have a genuine reason for leaving someone out of your will, seek professional advice regarding the extra precautions you may need to take.
Include a no contest clause in your will
Also known as a forfeiture clause, a no contest clause is a provision that can be used to disinherit any beneficiary who unsuccessfully challenges the validity of a will or trust.
Ensure your will reflects your own wishes
You should provide instructions for your will yourself. If any beneficiaries make the appointment on your behalf, and/or attend the appointment with you, or are present when the will is signed, undue influence may be suspected and may leave your will open to a challenge.
Ensure your executors know where your will is stored and keep it up to date
If you do not tell anybody that you have written a will, or have written an updated will, or have not advised them of the whereabouts of the will, it may be that nobody is aware of the will when you die.
Your estate may therefore pass under an earlier will you have made, or by intestacy if you have only written one will that they are not aware of.
It is also wise to have your will and any associated trust or tax planning arrangements professionally reviewed every five to ten years or any time your circumstances change, for example, when family circumstances change, or you suffer a bereavement. Find out more in our previous article outlining five reasons why you need to update your will.
Instruct a solicitor to prepare your will
The most important piece of advice is that it is always sensible to instruct an experienced solicitor to prepare your will. This will ensure you receive appropriate advice and can help prevent errors that may enable your will to be challenged after you pass away. Often, solicitors’ contemporaneous notes taken during the drafting of a will, are considered when a will dispute arises, especially in claims relating to capacity.
Katie Lofthouse is a solicitor based at WHN’s Clitheroe office. Katie provides advice on contentious probate, possession matters and settlement agreements, and specialises in contractual disputes and debt recovery. To contact Katie, call her on 01200 408300 or email katie.lofthouse@whnsolicitors.co.uk
