How To Avoid Your Will Being Contested
Naturally, emotions are high when a family member dies. If someone is not happy with what he or she inherited or didn’t inherit in a Will, they might be driven to contest the Will. Contesting a takes a long time, ranging from months to years and during this time, all beneficiaries are prevented from receiving what they are entitled to get.
Preventing relatives from contesting your Will might seem to be impossible, but there are procedures to follow to reduce the possibility ensuring your intentions are met.
Will Contest in the UK
Wills could be contested due to the following reasons:
- The Will was not properly executed
- Someone committed fraud
- Someone mounted unnecessary pressure on the person instructing the Will
- A member of the family feels that the person instructing the Will didn’t have the necessary mental capacity to carry out the Will at the date of signing.
How can you avoid your Will from being contested?
1. Ensure Your Will Is written Properly
The best means of doing this is to have a professional estate planner or solicitor that will help you to draft and execute the Will. Usually, Wills must be witnessed and signed by at least two unrelated witnesses who are not mentioned in the Will in any capacity.
2. Explain Your Decisions
Family members would be less likely to contest a Will if they understand the reasons behind a decision. A piece of good advice is to meet with family members at the point of drafting the Will to explain why a particular person is getting a reduced share or being left out. It is usually best to leave a small amount such as £100 to a person being left out as it shows they were considered and not forgotten.
In a situation whereby you decide not to explain directly, ensure that you state the reasons in the Will. In cases where this might happen, we have in the past taken a video of the person whose Will is being drafted explaining their reasons for leaving assets in the way they have decided.
The video record is held until the Will has been cleared and settled. If someone does contest the Will, they are shown the video, and it is explained that this will be used in any legal contest. We strongly advise this strategy is used as a backup to a well-drafted Will if there is any reason to believe that a Will may be contested.
3. Make Use Of A No-Contest Clause
Including a no-contest clause is one of the most efficient means of avoiding your Will from being contested. A no-contest clause only works if you are leaving something valuable to the likely displeased family member. No-contest clause ensures that if one contests the Will and fails, he or she won’t receive anything.
4. Remove The Appearance Of Pressure
Arguing that someone mounted pressure over the dead family member is another common way of contesting a Will. Therefore, to prevent this, make sure no family member inheriting under the Will is involved in the drafting process. Also, no family member should be present when signing the Will with your lawyer or when you discuss it.
5. Prove That You Are Competent
Another way to challenge a Will is to argue that the dead family member wasn’t competent mentally at the time of signing the Will. To avoid this from arising, ensure the lawyer that drafts the Will conducts a test for competency. The test involves answering a series of questions or seeing a doctor. Again a video helps in this scenario.
6. Video Record The Signing
Video recording the signing of the Will enables the court and your family members to see that the Will was signed freely, which makes it difficult for one to argue that you weren’t mentally capable of signing the Will.
7. Avoid Writing DIY Will
Many people might be tempted to write a Will following various online advice and templates. We do not recommend this due to the much higher risk of the Will being invalidated or even illegal.
8. Avoid ‘Deathbed’ Will
We encourage you to act now as last-minute Wills are more likely to be contested as the time pressure can lead to many mistakes and decisions need to be done quickly.
‘Deathbed’ Wills can make all the above recommendations more difficult as:
- Choosing a qualified adviser should not be a matter of the last-minute decision as the person drafting Will should be someone that you can rely on and trust.
- There might not be enough time to explain decisions about the Will made, which can cause the Will to be contested later on.
- It might be challenging to ensure no family member is involved in the drafting of the Will process if they have been routinely taking care of their loved one due to poor health condition.
- ‘Deathbed’ Wills are more likely to be contested as another family member can argue about the competency of the person who signed the Will.