How to Avoid Challenges to Your Will

Posted on August 14, 2018 by

You have finally got round to making a Will and thought long and hard about what you want to leave to whom. How do you make sure that your wishes are followed and prevent someone challenging the Will?

The first thing is it is important that the Will is drafted correctly to ensure that it contains everything that you wish to be included and that its contents are clear and legally enforceable. The Will also needs to be signed and witnessed correctly to ensure that it is valid. Appointing a solicitor to prepare the Will on your behalf will ensure that all these formalities are dealt with correctly and nothing can invalidate your Will.

The second thing is to avoid there being any possibility that your Will can be challenged on the basis that you did not know what you were doing at the time you made the Will or that someone has influenced your decision and you are not acting of your own free will. In order to prevent this, as solicitors who are experts in this area, we keep very careful records of conversations that we have and instructions received and confirmation that we have no concerns in this area. We will go through the terms of the Will with you before you sign it to ensure that you know exactly what you are signing and confirm in our notes of our meeting that we have explained it all to you and that you have confirmed that you understand the terms and that you are happy that the Will reflects all of your wishes.  We will also advise you to be seen at your appointments on your own so that we can speak freely, record that we have seen you alone and confirm that you have not been influenced by anyone and that your instructions are your own. Any notes from our meetings would then be used as evidence in any claim brought as a challenge to the Will.

As a belts and braces approach if you anticipate a challenge to your Will you may wish to obtain a medical report from your doctor to confirm that you have capacity to enter into your Will. This will serve as clear evidence that you knew what you were doing at the time you made your Will if such a challenge was made. Your doctor will charge a fee for this report but it may be worthwhile to incur this cost to ensure that your wishes are followed.

It is also advisable for it to be recorded as to your reasons as to any decisions made for example if you are leaving someone out of the Will. This will show that you have formed a reasonable and rational decision as to why you have not included that person or why they have received less. This can be done by a short clause in the Will confirming your reasons or in greater detail in a statement/letter to accompany the Will. This will again serve as evidence if a challenge to your Will is made.

It is also possible to attempt to dissuade someone from challenging the Will to include a no challenge clause. This would mean that if that any person included in the Will challenged it they would lose their entitlement under the terms of the Will. This would therefore only work if they were included as a beneficiary in the Will but were unhappy with what they were receiving. Rather than leaving someone out of the Will completely you may wish to consider leaving them something such as a small cash sum. This itself may dissuade them from making any challenge to your Will.

In a nutshell it is therefore incredibly important to protect your wishes that your Will is prepared by an expert. As one of the few firms to be accredited by the Law Society’s Wills and Inheritance Quality Scheme we at Brearleys can ensure that everything is done to minimise the risk of any challenges and that your wishes are put into effect. Please do not hesitate to contact our team to discuss your requirements.