Inheritance disputes have been rising in recent years – so what can you do to safeguard your Will?
Unfortunately, there is no fail-safe way to protect your Will from legal challenges, but see below the steps you can take to reduce the chances of a successful claim being made against your estate.
- Explaining your decisions
It is important to explain within your Will the rationale behind the decisions you have made. Clarify why the people you are leaving your assets to have been chosen, and why any particular person who might expect an inheritance has been left out. It helps if your explanations are reasonable and rational.
If circumstances allow, it may also be a good idea to discuss your plans with your loved ones now. That way they will not be shocked when your Will becomes public at a time already fraught with emotion. This should reduce the risk of their contesting the Will as an angry response to discovering its contents.
- Small gifts and avoiding payment patterns
Rather than exclude a close family member from your Will completely, if you are worried about how they will react, you could consider leaving them a small gift instead.
If you do decide to leave a close family member out of your Will completely, it is sensible not to establish a pattern of giving them money while you are alive. Doing so could give them better grounds to contest your Will.
- ‘No contest’ clause
No contest clauses seek to prevent a Will being challenged. They are aimed at dissuading a beneficiary from disputing a Will merely because they are unsatisfied with the amount they are to receive under the residuary estate.
Such a clause will state that if a beneficiary makes a challenge and the court rules against them, they will lose their entire inheritance.
- Establish a link to a charity
If you plan to leave money to a charity in your Will, it is worth establishing a link with the organisation by donating money while you are alive. Though there are no guarantees, it will be harder to contest a charitable bequest if there is evidence you supported the charity during your lifetime. - Confirm your ‘testamentary capacity’
Wills are often challenged on the grounds that the person lacked the required mental capacity to record their wishes at the time the Will was made. To mitigate this risk you can ask your GP (or another suitably qualified medical practitioner) to witness your Will and provide a report confirming you have ‘testamentary capacity’.
It is always best to ask a solicitor to request such a report on your behalf, so the medical practitioner knows what to include in the report.
- Destroy your old Wills
Providing your new Will is signed and properly executed, it will supersede any previous Wills. However, to avoid confusion, it is prudent to destroy any earlier Wills, especially when you have removed from your latest Will beneficiaries who were included in an old Will. - Create a trust (an alternative)
You may wish to consider creating a Will trust so that a trustee or group of trustees administers your estate after you are gone.
Alongside the trust you can include a letter of wishes addressed to the trustees. Although this is not binding, it will guide the trustees over what you would like to happen to your estate.
Although you can appoint a loved one as a trustee, it is usually best to appoint someone neutral and better qualified, ideally a solicitor. The trustees can make decisions on your behalf should a challenge to your Will under the Inheritance (Provision for Family and Dependants) Act 1975 arise.
Most important of all is the overarching principle of instructing a solicitor when you make or update your Will.
Failing to understand the law is probably the single biggest risk factor likely to expose your Will to challenges, and a solicitor can help you to avoid the pitfalls.
For expert advice on Will-writing and estate-planning, please contact Ollie and the team at Tyto Law on 01724 642 842 or by email on info@tytolaw.co.uk.