{"id":8395,"date":"2020-07-21T11:42:10","date_gmt":"2020-07-21T11:42:10","guid":{"rendered":"https:\/\/www.riaabarkergillette.com\/uk\/?p=8395"},"modified":"2025-09-01T12:08:45","modified_gmt":"2025-09-01T12:08:45","slug":"four-steps-to-reduce-the-chances-of-a-contested-will","status":"publish","type":"post","link":"https:\/\/www.riaabarkergillette.com\/uk\/four-steps-to-reduce-the-chances-of-a-contested-will\/","title":{"rendered":"Four steps to reduce the chances of a contested will (Part 2)"},"content":{"rendered":"\n

This month, we set out four steps to reduce the chances of your will being contested after you die.<\/p>\n\n\n\n

Step 1: Prove your testamentary capacity<\/a><\/h4>\n\n\n\n

One of the grounds for challenging a will is to argue that the testator, the person who created the will, did not have mental capacity at the time. There is a presumption that the testator has the capacity, and it is for the challenger to rebut that presumption. However, you could prove your mental capacity to counter an anticipated challenge.<\/p>\n\n\n\n

If you instruct a professional or a qualified solicitor, they will usually make notes on your mental capacity when making your will. However, you may need more evidence than a solicitor\u2019s attendance note in some circumstances. If you are older or infirm, it may be necessary to either:<\/p>\n\n\n\n

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  1. have your will witnessed by a medical practitioner who understands the notion of capacity and can make a record to show that they have undertaken an assessment of your capacity to sign a will; or<\/li>\n\n\n\n
  2. have an individual assessment by a specialist mental capacity assessor.<\/li>\n<\/ol>\n\n\n\n

    You will have to pay a relatively modest sum if you want to select either of these options, but it can help you ensure that your estate avoids incurring tens of thousands of pounds in lawyers\u2019 fees in the event of a dispute after your death.<\/p>\n\n\n\n

    Step 2: A \u201cno contest\u201d clause or a forfeiture clause<\/h4>\n\n\n\n

    If you plan to leave someone a gift in your will rather than cut them out entirely, you may wish to consider a \u201cno contest\u201d clause. This clause states that you are making a gift to somebody for a certain amount, and if they challenge your will for a bigger share, they will forfeit their entitlement to the initial gift. While this does not entirely prevent challengers, who may think it is worth losing \u00a310,000 to get \u00a380,000, it may prevent others from taking the risk of losing that money.<\/p>\n\n\n\n

    Step 3: A declaration\/letter of wishes<\/h4>\n\n\n\n

    If you do not plan to leave a close family member a gift, you can make an explicit declaration to this effect in your will.<\/p>\n\n\n\n

    The declaration will state that you have considered their position and have decided not to make any provision for that person in your will, along with a brief statement explaining why.<\/p>\n\n\n\n

    As this will be stated on the face of your will, it shows that you have given the matter some consideration and have made an informed decision. Best advice dictates that you set out more detailed reasons and background in a separate statement called a letter of wishes. This will not form part of the will but would be admissible as evidence should a claim emerge.<\/p>\n\n\n\n

    We often recommend letters of wishes as they allow you to set out the background and history of why you do not feel this person is entitled to any or any more of your assets. It could be because you have made numerous lifetime gifts to them or simply because you do not like them. Whatever it is, put it all down in a letter of wishes to show that you have given the matter thought. It will help you to explain your reasoning. Unlike your will, which becomes a public document once admitted to probate, your letter of wishes remains private. However, if there is a dispute, your letter of wishes will be used as evidence in court, and people other than your executor will read this.<\/p>\n\n\n\n

    Step 4: Don’t let your assets form any part of your estate when you die<\/h4>\n\n\n\n

    One of the best ways to ensure no dispute arises over your assets is to dispose of the bulk of your estate during your lifetime. There are several ways you can do this. For example:<\/p>\n\n\n\n