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Rosie Duplessis

Chartered Legal Executive - Brighton

20th July 2021

How to Prevent Someone Contesting a Will

How to Prevent Someone Contesting a Will in the UK

Many people consider making a Will a routine necessity. A way of ensuring your wishes are carried out after your death.

Without a Will, a person’s estate is distributed in accordance with the Intestacy Rules. These can be rigid and do not account well for many individuals’ personal circumstances.

Personal circumstances are unique, and some disputes over the content or form of a Will are unavoidable. There is no fail proof way to completely prevent someone contesting a Will in every situation. However, there are some simple steps that can be taken to lessen the prospects of a challenge. This is not an exhaustive list and neither is it a guarantee that these will prevent a dispute, however they are simple steps which can mitigate some of the more obvious pitfalls and help prevent someone contesting a Will.

Instruct a Qualified Professional

To be valid, a Will should comply with Section 9 of the Wills Act 1837.

The most effective way of ensuring that this is achieved is to instruct a qualified professional to draft your Will. It often comes as a surprise to many people that Will writing is not a reserved or regulated activity and you do not need to have any specific legal qualifications to hold yourself out as a Will writer. This then can often lead to conflict if the Will is not professionally prepared.

Our Private Client department is here to assist and they can be contacted on the details below.

Your legacy when you die is often the largest asset pool any of us will have to distribute/preserve. A properly drafted Will can prevent unnecessary distress and dispute the costs of resolving may then reduce the amount of the estate for distribution in legal fees.

Consider Capacity

A challenge to a Will may be mounted if it is believed that the Will maker lacked capacity to make the Will at the time it was drafted. Capacity is issue and situation specific.   Our Private Client department is well versed with the requirements and will take account of capacity. For most people, capacity is unlikely to be an issue, but if it is of concern, then the will writer can take steps to arrange for professional ‘capacity assessment’ and this would be filed with their records, to confirm the medical opinion on capacity at the time.

Undue Influence/Coercion/Fraudulent statement

There remains a host of allegations which may be levelled against the validity of a Will. The challenger may believe that the Will writer could have been unduly influenced to make the Will or specific legacies, has been coerced in any way or has had their ‘mind poisoned’ against a certain individual.

This may sound far-fetched, but it is perhaps surprising how often these issues are raised in Estate disputes.

If you have a Will professionally prepared, you will usually be required to meet with the Will writer alone, to consider the draft provisions of the Will and confirm that you are content with the same and that they reflect your true wishes.

In the event of a challenge, the Will writing firm are often asked to confirm whether the appointment to draft the Will was made by the Will writer themselves and whether anyone attending the appointment with them stood to inherit under the Will. These are factors you may want to consider when planning.

Letter of Wishes

You can leave a ‘letter of wishes’ alongside your Will. Within this letter you can explain why you have made certain decisions and left certain legacies. Such a letter is not legally binding, but it can help to ward off challenges and set out the rationale  behind the content of your Will.

Adequate Provision

The Inheritance (Provision for Family and Dependants) Act 1975 allows various classes of person to challenge a Will; often claiming the Deceased has a moral obligation to provide for them or that they were financially disadvantaged by the provisions of the Will versus the maintenance needs they acquired in life.

This is a complex area of law. For the purposes of this article, if you are making an ‘unusual’ legacy within your will, it is suggested that a ‘letter of wishes’, as referenced above,  accompany the Will.

Update your Will!

A key problem encountered is where a Will has been allowed to become out of date.

Changes in relationships or finances should lead to careful consideration of whether your current Will is adequate. It is all too easy to enjoy living life and forget to amend your Will.

It is relatively easy and low cost to amend or update a Will and this action may prevent considerable upset post-death.

These are just a few of the more common areas of concern and if you would like to discuss making your Will in more detail, then please do contact our Private Client department. Alternatively, if you have queries surrounding contesting a Will, please do get in touch with Alistair or Rosie from our Dispute Resolution team.

Private Client

Simon Landivar

Solicitor

T: 01273 329797

SimonLandivar@rixandkay.co.uk 

Ellie Taylor 

Solicitor

T: 01273 766956

EllieTaylor@rixandkay.co.uk

Dispute Resolution

Alistair Rustemeyer

Partner, Solicitor

T: 01273 329797

AlistairRustemeyer@rixandkay.co.uk

 

Rosie Duplessis

Chartered Legal Executive

T: 01273 766929

RosieDuplessis@rixandkay.co.uk

 

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