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:
- A lack of testamentary capacity
The person creating the will did not have the mental capacity to create the will. - Lack of due execution
Either the will or the signatures on the will do not meet the necessary formalities of creating a will. - 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. - 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. - Fraud or forgery
A third party could have fraudulently made all or some of the will. - 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.