"More essential to the development of man than intelligence, is the ability to changeCharles Darwin"

"Over my dead body" - 4 ways to help protect your wishes and avoid your Will being challenged

“Over my dead body!”

That was the response I got from a client recently when, on taking instructions for his Will, I queried whether it was his intention to leave anything to his children. It turned out the client no longer had a relationship with his children and, as a consequence, was now insistent that I make sure they receive nothing and couldn’t challenge this later on. This is not the first time I’ve had clients instruct me to do something like this and so, in the circumstances, and given so many of us are making Wills as one of our New Year’s Resolutions currently, I thought it an appropriate subject this month.

Now, to begin with, starting with the bad news; contrary to popular belief, there isn’t a clause that you can include in your Will which will guarantee this isn’t challenged following your death. This is perhaps best demonstrated in the 2017 case of Ilott v The Blue Cross (and others). However, that being said, there are various steps you can take when making your Will that give you the best possible chance to avoid such a claim succeeding. So if you want to protect your Will as much as possible from later being challenged, here are four options you might want to consider:

1. The first, and perhaps the most important; make sure you instruct a specialist wills and estate planning solicitor to draft your Will. Not only will they be able to advise you of the risks you’d face in either leaving certain individuals out or in choosing to do what it is you want, they would also retain detailed notes on file of your instructions that could then later be disclosed, in the event of any claim being made. What’s more, having a specialist solicitor prepare you your Will also ensures that it is drawn up correctly, compliant with the relevant legislation, and cannot therefore later be challenged for lack of valid execution or on grounds of ambiguity.

2. Where you are looking to leave out certain family members or loved ones from your Will, or indeed anyone you currently support financially, it is essential you prepare a letter of wishes, detailing your reasons why you’re excluding them. This letter of wishes can then be placed with the Will and, in the event of a claim later on, it can be disclosed to the court and relied on in defending the claim. Word of advice though, given recent court decisions; when making your letter of wishes, as well as documenting why you are leaving out certain individuals, it is also imperative you explain why those people you have included in the Will are being provided for instead. This is particularly necessary where your relationship to those individuals is seemingly more distant to the person(s) being excluded.

3. Although any instructing solicitor will assess mental capacity when taking instructions, if you feel there might be questions over your capacity when you’re making your Will; for instance if you’ve suffered head trauma in the past, or mental health issues or indeed even if you’re just elderly, it may sensible to have your GP or doctor provide you a medical certificate, confirming your mental capacity at that time. These generally aren’t difficult to arrange and should prevent anyone being able to later claim you didn’t have the requisite mental capacity to make the Will that you did. Similar with the letter of wishes above, any certificate should always be kept with the Will, so that it can be referred to later on if necessary.

4. Finally, in terms of a more practical step, to minimise the risk of someone claiming you were unduly influenced or forced into making your Will the advice is, where possible, arrange your Will appointment with your solicitor yourself and ensure that anyone benefiting is not then with you when you go to give instructions or sign the Will. Again, similar with when assessing capacity, any solicitor you instruct would always satisfy themselves that your instructions were an honest reflection of what you wanted and weren’t the result of external pressure or coercion.

Therefore, in summary, whilst you cannot guarantee your Will won’t later be challenged, there are certainly steps you can take to minimise the likelihood of any such claim succeeding, the most important of which is instructing a specialist solicitor. Therefore, if you are eager to ensure your Will isn’t challenged or even if you’re just concerned that yours might be, why not get in touch to see if we can perhaps help. Feel free to contact us on 01202 888 300 or drop us an email.

Article Date: 19/02/2019

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