How to Protect Your Will from Being Contested

When drafting a will, the intention is to have a legally binding document that clearly outlines how your assets and estate should be distributed after your passing. However, wills can sometimes come under scrutiny and may be contested by discontented beneficiaries or other interested parties. Contesting a will can lead to protracted legal battles, unnecessary family strife, and significant financial costs. Understanding how a will can be challenged and taking careful steps to safeguard its validity is crucial for ensuring your wishes are honoured.

There are several grounds on which a will may be contested. The most common include claims of undue influence, lack of mental capacity at the time of drafting, improper execution, or the existence of a later, more accurate will. Being aware of these vulnerabilities allows you to take proactive steps to ensure the document is robust and legally sound.

Seek Professional Legal Advice

One of the most effective ways to protect your will from being contested is to engage a qualified solicitor with expertise in estate planning and wills. A professional will ensure that your document complies with all legal requirements and is drafted in a manner that minimises the potential for disputes.

A solicitor can provide guidance on language to use in the will to prevent ambiguity that could lead to misinterpretation. They can also serve as an impartial witness during the signing process, which may be invaluable if your will is ever challenged. Having your will drafted and overseen by a professional demonstrates that the process was conducted properly and in line with your genuine intentions.

Demonstrate That You Have Mental Capacity

One of the most common reasons for contesting a will is an allegation that the testator (the person making the will) lacked the necessary mental capacity at the time it was written. To withstand legal challenges on this basis, you must ensure there is ample evidence that you were of sound mind during the drafting process.

Legally, you must understand the implications of your will, the extent of your estate, and the claims of anyone who might reasonably expect an inheritance. If there is any possibility that someone may attempt to challenge your will on these grounds, consider obtaining a medical evaluation from a doctor at the time of writing or updating your will. A written statement from a healthcare professional confirming your mental competence serves as powerful evidence against any allegations of diminished capacity.

Avoid Undue Influence

Another common ground for contesting a will is undue influence. This occurs when someone exerts pressure or manipulation to unfairly influence the testator’s decisions regarding their estate’s distribution. If a person believes that they were unfairly deprived of an expected inheritance due to another’s coercion, they might try to challenge the will.

To prevent such claims, ensure that you make your will independently and free from external pressure. Meeting with your solicitor privately is crucial, as they can confirm that no undue influence has taken place. If you anticipate that someone may claim to have unduly influenced your decisions, consider keeping a clear record of your thought process when drafting the document, explaining your reasons for distributing your estate in a particular way.

Adhere to Legal Formalities

A will can be deemed invalid if it does not comply with the legal requirements for execution. To ensure your document meets the legal standards, you must:

– Be of legal age to create a will, typically 18 years or older
– Sign the will in the presence of at least two independent witnesses who also sign it
– Ensure that the witnesses are not beneficiaries or spouses of beneficiaries, as this could create a conflict of interest and render their inheritance void

It is important to familiarise yourself with the specific legal requirements in your jurisdiction, as they may vary. Ensuring that these formalities are met reduces the likelihood of a successful challenge against your will.

Use a No-Contest Clause

Incorporating a no-contest clause (also known as a forfeiture clause) in your will may deter beneficiaries from challenging its contents. This clause states that if a beneficiary contests the will and loses, they forfeit any inheritance they would have otherwise received.

While no-contest clauses are not always legally enforceable in all jurisdictions, they can serve as a deterrent by making individuals think twice before initiating a legal dispute. If a potential challenger stands to lose their inheritance for contesting the will unsuccessfully, they may be less inclined to proceed. Seeking legal advice from a professional will clarify whether a no-contest clause is appropriate for your specific circumstances.

Communicate Your Wishes Clearly

Family disputes and misunderstandings often arise when relatives are caught by surprise by the terms of a will. Openly discussing your intentions with family members and other beneficiaries can help prevent contention after your passing.

While you are not obligated to disclose the details of your estate’s distribution, explaining your reasoning can help manage expectations and reduce the likelihood of a challenge. If there is a particular decision that you anticipate may cause friction, addressing it directly while you are still alive may mitigate future disputes.

Keep Your Will Updated

Outdated wills can create confusion and give rise to challenges, especially if significant life changes have occurred since the document was created. Marriage, divorce, the birth of children or grandchildren, or the acquisition of new assets are all valid reasons for reviewing and updating your will.

Ensuring your will is up to date prevents claims from individuals who may believe they are entitled to an inheritance due to an earlier version of the document. By reviewing and amending your will periodically, you can ensure that it accurately reflects your current wishes and any legal changes that may affect your estate.

Consider Alternative Estate Planning Tools

In some cases, placing certain assets in trusts rather than leaving them as part of your will can reduce the risk of disputes. A trust is a legal arrangement that allows you to transfer assets to beneficiaries under predetermined conditions. Since assets in a trust do not form part of the probate process, they are less susceptible to legal challenges.

Another estate planning option is gifting assets while you are still alive. If you distribute portions of your wealth before your passing, these assets will not form part of your estate and won’t be subject to the same scrutiny as those left in a will. However, if you choose this approach, take care to structure your gifts to avoid unintended tax consequences.

Store Your Will Securely

Once you have completed your will, it is essential to store it in a secure location where trusted individuals can access it when needed. If a will is lost or tampered with, it may create uncertainty that leads to contestation.

Inform your executor or solicitor of the document’s whereabouts to ensure it can be retrieved promptly when required. Some professionals offer secure storage services, which may provide additional peace of mind.

Address Potential Challenges Directly

If you anticipate that a specific person may try to challenge your will, consider including a written explanation in the document addressing any perceived inequalities. For example, if you are leaving more to one child than another, you may wish to provide a note clarifying your reasoning.

This transparency adds credibility to your decisions and may prevent future disputes by demonstrating that your choices were intentional and carefully considered. Written records and clear evidence of your decision-making process strengthen the legitimacy of your will.

Conclusion

Careful planning and thorough documentation are essential when drafting a will to ensure it remains legally valid and protected from unnecessary challenges. Seeking professional legal advice, clearly expressing your wishes, adhering to legal formalities, and taking measures such as incorporating a no-contest clause or using trusts can significantly reduce the likelihood of disputes.

By implementing these protective strategies, you can provide peace of mind that your estate will be distributed according to your true intentions, minimising the emotional and financial burden on your loved ones after your passing.