November 30, 2017
Following the conclusion of the Supreme Court case of Ilott v Mitson earlier this year (after 10 years of dispute) it’s important to be aware that a
Will can be contested and your wishes could effectively be disregarded.
If you think there is even a slight opportunity that someone could contest your Will after your death then there are several steps that you need to consider.
Know the formalities
There are five standard requirements that need to be met for a valid Will.
The Will must be:
- In writing
- Signed by the testator (or by another person in the presence of the testator)
- Clear that it is intended to be a Will
- Signed in the presence of two or more witnesses at the same time
- Signed by the witnesses in the presence of the testator
Make sure your Will is professionally drafted
DIY Wills can be more easily contested, as a document prepared without legal background or knowledge will not necessarily meet the necessary requirements. Therefore, it is essential that your Will is professionally drafted by a specialist, and legally qualified, Wills and Probate practitioner. In doing so, you will be guaranteed expert advice on appropriate measures and peace of mind when it comes to reducing the likelihood of someone successfully contesting your Will and effectively going against your wishes.
A Solicitor will ensure that your Will is valid and properly executed including documenting all your intentions and wishes with a detailed paper trail. The more comprehensive and thorough the notes are, the more obvious it is that your decisions have been discussed and thought about carefully.
Beware of the grounds that your Will can be contested
There are many grounds to contest a Will including: undue influence, fraud, lack of capacity or lack of reasonable provision.
The best way to help prevent a claim of undue influence or fraud is to ensure that anyone you wish to benefit from your Will has no involvement in its process. When contacting a Solicitor, arrange and attend the appointment alone or; if you are a couple and want to make your Wills together, make sure that you are clear that the wishes are your own and you are not being influenced by your partner.
The validity of a Will can also be challenged on the basis that a person lacks mental capacity (testamentary capacity). If you suspect that this will be challenged, it is worthwhile asking your GP to provide a report confirming that you have testamentary capacity.
If you are considering excluding or limiting the provision for a family member or someone who financially relies on you, then you will need to provide a detailed account as to why you are excluding that individual. You have the option to include a no-contest clause which essentially means that the beneficiary will forfeit their inheritance if they challenge your Will. It is important to understand that this is not always binding and does not stop a person from contesting. However, if you include a ‘gift over’ in your no-contest clause, where the property will transfer to a second recipient if the primary recipient does not accept it, then it will strengthen your Will and make it less likely to be challenged.
Your solicitor can guide you down the correct path to greatly minimise a claim on any of these grounds.
Don’t forget about your Will and keep it in a safe place!
It is important to review your Will at least every five years and more often with any new life event such as births, deaths, marriages, separations and divorce. Circumstances can change drastically and your Will may need to be amended. Unfortunately, failing to review your Will regularly can increase the likelihood of a dispute which could otherwise have been avoided.
Ensure you ask for a copy of your Will from your Solicitor and consider informing your executors where you have stored it. Strict legal rules come in to play on how your estate is dealt with if your Will cannot be found.
If you’ve spent years working to increase your assets and hate the thought of your wishes being disregarded or contested when the times comes, ensure that you have done your utmost to protect your Will and your estate by contacting a member of our team today.
About the Author/s
Samantha Ibrahim is a Private Client Practitioner within our Wills and Probate team.
Samantha, who joined Spencers Solicitors in 2010, is an experienced and qualified Chartered Legal Executive with a strong background in personal injury including acting for claimants involved in accidents at work and in relation to industrial disease, public and occupier's liability. Samantha’s role has evolved and her main focus is now on the provision of Wills and Probate services.
Kathleen Kilgarriff is a Paralegal within our Serious Injury Team.
Kathleen is an undergraduate Law student from Nottingham Trent University who joined the business in June 2017 for her placement year. With her career aspiration to become a Serious Injury Solicitor, Kathleen has joined the team to gain first-hand experience to enhance her knowledge and career prospects by providing support and assistance with the Serious Injury Team. Kathleen also assists in producing instructive blogs for the website about important events , in addition to providing support in the Employment Law Team.