Skip to main content

Insight article

June 25, 2020

How to reduce the chances of a will being contested (Part 1)

One of the main reasons people draft a will is to give their family peace of mind. The last thing they want is for their friends and family to be squabbling over their assets when they die.

Making a will doesn’t guarantee people won’t argue over your assets. Still, it can reduce the chances of your will being contested if it is made correctly and supported by a professional will drafter or, even better, a qualified solicitor.

There are several grounds upon which somebody can challenge a will. The main ones are:

  1. A lack of testamentary capacity
    The person creating the will did not have the mental capacity to create the will.
  2. Lack of due execution
    Either the will or the signatures on the will do not meet the necessary formalities of creating a will.
  3. Undue influence or coercion
    Somebody, typically one of the beneficiaries, had pressurised the writer of the will to create it in the way they have.
  4. Lack of knowledge and approval
    The person creating the will did not know the contents of the will or fully understand what they were signing, and perhaps even signed the document without even knowing they were signing their will.
  5. Fraud or forgery
    A third party could have fraudulently made all or some of the will.
  6. Reasonable financial provision
    Although not a challenge to the validity of a will itself, certain persons can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the will (or if no will, the Intestacy Rules) does not leave the applicant with “reasonable financial provision”.

Probate disputes are expensive to resolve and stressful. But in recent years, we have seen more and more of them; potentially because of the increasing value of people’s estates (especially considering property prices), A complainant may think it’s worth taking the punt that it’s worth spending £10,000 to contest a will if they could potentially gain £80,000. Before making that decision, however, they should bear in mind that the executors’ costs in defending such a claim are taken from the estate.

There are many benefits to having your will drafted by a qualified solicitor. Each time you meet your solicitor to discuss your will, they will usually record a file note of your instructions and record other factors such as why you wish to distribute your estate in a certain manner, why you chose to exclude certain beneficiaries and, if relevant, notes on your mental capacity at the time of making your will. Should the will be contested, your executors can obtain copies of these notes from the solicitor as evidence of your thoughts, feelings, wishes and beliefs when creating your will. This could prove that any grounds to contest your will are flawed.

Under ‘normal’ circumstances, the will is usually executed under the supervision of the solicitor or will drafter who drafted it, and it is normal practice for at least one of the witnesses of the will to be that solicitor or will drafter. Solicitors, in particular, will ensure that your will complies with the formalities set out in the Wills Act 1837.

Further, if a solicitor drafted the will, the original can usually be stored by the firm in a strong room. This limits any chances of forgery taking place following the testator’s signature to the will. The will is then only released to the person who created it or the executors of the will upon producing a death certificate.

The global pandemic has led to an increase in the number of people creating new wills. Many of these have been DIY wills, which may be satisfactory on most levels but may not put the relevant safeguards in place, as a solicitor would, to prevent your will from being contested.

All our wills are drafted and documented by fully qualified solicitors with expertise in inheritance tax planning. We have onsite storage facilities to store your will until it is needed safely.

If you have any other query regarding your will or estate, please feel free to contact private client solicitor James McMullan who will be happy to help.

Note: This is not legal advice; it provides information of general interest about current legal issues.

Stay in touch

Subscribe to our newsletter

Stay in touch

By completing your details and submitting this form you confirm you are happy for us to send you marketing communications and that you agree to our Website Privacy Policy and Legal Notice and to us using Mailchimp to process your data.


Sending

News/Insight

  • How should an employer respond to a ‘heat of the moment’ resignation?
    Employers should remember that a 'heat of the moment' resignation should be treated differently from those that come in the usual course of business. They are often verbal and unexpected and usually follow a workplace disagreement. To do otherwise ma


    Read more
  • An Introduction to Private Client Law
    Lasting Powers of Attorney


    Read more
  • Understanding financial provisions on divorce
    Divorce can be emotionally challenging, and navigating the financial aspects can add to the challenge.


    Read more
  • Digital divorce: the highs and lows
    According to figures from the Ministry of Justice, digital divorce applications rose by 20% in the year following the introduction of no-fault divorce (2022 to 2023).


    Read more
  • Agile AI Regulation: Moving with the times
    Artificial intelligence (AI) is becoming more prominent everywhere we look in our everyday lives. The critical questions for those trying to make AI safer with regulations are: how broad, how soon and how strict should they be?


    Read more

What they say...

  • Peter W, May 2024
    “Patrick Simpson provided first class support when I experienced redundancy. I couldn’t have asked for more. Demonstrating his superior knowledge and experience and explaining everything to me with crystal clarity. Efficient and timely with a

  • Mr Rose, April 2024
    “The firm acted for me in an employment matter where the issues were as much practical as legal. The advice given was thorough and clear, marrying black letter law to the practicalities. This helped me greatly in achieving a satisfactory outcom

  • Brian Higgins, April 2024
    “Patrick was excellent, responded quickly and gave concise, clear advice. He made the process very straightforward.” Employment

  • J. Cassell, April 2024
    “We were advised by Charlotte Barbaroussis. Her dealings were very professional. She was pleasant easy to deal with and very approachable. Her help during the process of setting up my wife’s and my will made the task a lot easier.”

  • David Delicata, April 2024
    “I dealt with Pippa Marshall for my divorce, who was recommended to me by a friend who worked with Pippa for his complicated divorce. She was very professional and very informative. Pippa took her time to go through every aspect, and I really f

Read more
Send this to a friend