Strategies for Avoiding a Will Challenge
Challenging a Will (or contentious probate applications as they are also known) has become increasingly popular. This may be as a result of the increased value of many estates as a direct result of property values increasing. To successfully defeat a Will challenge there are a number of steps that can be taken at the time your Will is drawn up.
Here are several tips which you may find useful:
Instruct a Solicitor
The first and probably the most important tip is to have your Will drawn up by a professional. An experienced solicitor will not only be able to draft your Will in such a way as to ensure your wishes are carried out, but they will also make sure that the Will is correctly executed and witnessed in the appropriate manner. A wrongly executed Will is invalid and someone who dies with an invalid Will is treated as having died intestate and their estate will pass in accordance with the intestacy rules which may not reflect the deceased persons wishes.
Another important and practical point to bear in mind is that a Will that is drawn up by a solicitor is often stored at the solicitors office. This then avoids the assumption that a Will that cannot be found among a deceased 's papers is assumed destroyed in which case the estate would again pass according to the intestacy rules.
It is often the case that a testator (the person making their Will) does not consider making a Will until they are of advanced years. If a testator has lost capacity either through illness or injury, they cannot validly signor execute a Will. In circumstances where a solicitor suspects that there may be a challenge on these grounds, a capacity check can be undertaken by a health professional at the time the Will is executed.
Claims Under the Inheritance (Provision for Family and Dependants) Act 1975
It often comes as a shock to clients to discover that even when a Will has been properly executed and there are no issues surrounding capacity, a Will can be challenged by a certain class of dependents if they are able to show that insufficient provisions were made for them in the deceased's Will. For example, if a testator wished to exclude a family member from their Will who would in normal circumstances be expected to benefit, then it is advisable to have a side letter or note setting out the reasons why that potential beneficiary was excluded. Long standing family feuds or the mere fact that one sibling is far better off than another can be adequate grounds for defeating a challenge under the Inheritance act provisions.
Whilst there is no legal requirement to instruct a solicitor to draw up a Will it often ends in a better result for the client. As we often tell clients there is no legal requirement to visit a dentist for a painful tooth, but you would rather do that than reach for the toolbox.
If you are in need of support through your probate journey and are looking for a friendly and professional team of probate specialists, contact Howard & Over today. Recently named Law Firm of the Year at the 2023 DASLS Awards.