Despite the recent trend of contested wills, there are steps you can take to protect your estate from potential claims.
Have a will in place
This is the only way you can document your wishes. Without a valid will in place, your assets will be distributed according to the rules of intestacy. It does not matter if you have made verbal promises to loved ones; they will not take effect unless stated within your will. Once you have a will you must keep it up to date. Review it on a regular basis as finances and family situations can change. A will can quickly become out of date and no longer reflect your wishes. This ultimately leads to disappointment for family members or dependents resulting in a potential contested will.
To avoid your will being contested seek professional advice
If your family circumstances or wishes suggest that a dispute is likely, it is important to seek professional advice when making your will. A dispute may be likely if you are excluding any dependants or gifting them a lesser share than they may be expecting. A solicitor will be able to assess your capacity, ensure there hasn’t been any undue influence and have a full and complete file including the reasoning behind the contents of your will. Subsequently, the solicitors’ file may be required as evidence in the event of a dispute.
Although the number of disputes is on the rise, recent case law has held that it is “a very strong thing” to find a will to be invalid where it has been prepared by an independent solicitor. If the will is homemade a family member may have assisted the individual in the preparation of the will resulting in an undue influence claim. There is also no one to assess the individual has the capacity to create the will.
Leave a letter explaining why
If an individual is being excluded from your will, write a letter explaining why you are doing that. You should set out why you are making greater provision for one party over another or, excluding a party altogether. This letter may later be required as evidence.
Talk to your family during your lifetime
If you are able to make your wishes to your family members clear during your lifetime then this is advisable. If the first time a family member finds out that they have been disinherited is after death, they will be unable to ask or understand why. This may lead to shock, suspicion and subsequently a possibility for your will to be contested.
Reasonable financial provision
Even if you have taken all of the above steps and the will is clearly valid, a beneficiary could still make a claim for reasonable financial provision from your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
If you think a beneficiary is likely to make a claim against your estate regardless of the steps you have taken, it may be sensible to consider leaving them something in your will. This option may be less costly than the costs of an estate dispute.
Please contact Zoe Smith on to discuss any of the above matters.