2020-05-21
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How to prevent someone from contesting a will

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Posted by Laura Abbott on 21 May 2020

Laura Abbott Associate

It is unfortunately not possible to prevent someone from contesting a will. 

However, when drafting a will, and in the early stages of being faced with the prospect of an inheritance dispute, various steps can be taken to protect against the will being contested.

Preparing a will

The first step is taking professional advice when making your will. Homemade wills are much more susceptible to challenge because there is no independent evidence available to support its validity. In contrast, a solicitor is expected to keep a detailed file and make a contemporaneous note of all meetings and telephone conversations where instructions and advice were given. These can be made available in the event of a challenge to the will to explain the decisions. This will make the challenge to the will more difficult and either then deter the claim or make it less likely to be successful. 

The solicitor will ensure the will is properly executed in accordance with the legal formalities required.

Independent advice

Often solicitors will come out to see a client at home if it is not possible for the client to attend their offices. A person looking to make a will should do so as independently as possible, i.e. making an appointment themselves and seeing the solicitor alone. The solicitor's file will be clear that there was no third party involved who could have possibly been exerting any undue influence. 

A solicitor will also satisfy themselves as to the person's mental capacity and make a note on their file. If in any doubt, they will obtain a medical report. If there is any doubt as to the capacity or there is reason to think there may be a challenge to the will at a later date, a capacity assessment is the best practice as further support of the will's validity. 

Recent case law has increasingly found in favour of testators having testamentary capacity, particularly where the will has been professionally prepared. The court's view appears to be that experienced solicitors would not prepare a will for a person if they feel they did not have the capacity.

Example case law

In Hawes v Burgess in 2013, the judge said it would be a "very strong thing" to find that the testator did not have the capacity to make a will when an experienced and independent solicitor had prepared it following a meeting with her, where that solicitor had read the will back to her and considered (and had recorded in an attendance note) that she was capable of understanding the will. He said that a will so drafted by a solicitor "should only be set aside on the clearest evidence of lack of mental capacity". The solicitor's evidence was preferred to medical evidence obtained retrospectively because the medical practitioner did not have the benefit of meeting will the deceased at the time the will was drafted.  

This precedent has been followed in subsequent cases.

It is important to consider who might be expecting to inherit from your estate. If they are not going to, explain the reasoning to the solicitor, so there is evidence that they were considered and deliberately excluded. A separate letter penned so far as is possible in the words of the person making the will in the form of a letter of wishes could be useful to explain the decision making. A court will look to respect the wishes of the deceased person. 

Sometimes we see so-called 'no contest clauses' in wills, officially 'forfeiture clauses'. These usually take the form of a sweetener legacy, but the beneficiary only receives it if they do not contest the will. These can be helpful because the beneficiary may be less inclined to pursue a challenge if they face the prospect of losing the legacy, particularly if they have weak chances of success in any claim. 

If possible, the person making the will should talk to their family about their wishes. It may be, for example, that a person has decided to 'skip a generation' with their estate planning, seeing their children are well off and comfortable but worrying about the younger generation struggling. This is rational and would probably be understood and welcomed by the children but, if not explained during lifetime could come as a disappointment or shock when they come to learn of the terms of the will afterwards. A discussion during a lifetime could avoid that, allowing the family to ask questions and prevent any nasty surprises or misunderstandings. 

Finally, people need to review their wills regularly and keep them up to date. A challenge could easily be avoided if a will made in the time of family tension, subsequently resolved, is updated to reflect that.

If a dispute arises

To the extent that this careful planning advice has not been followed, or a challenge to a will is still intimated, it is again important to seek professional advice at an early stage to prevent this escalating. It is crucial for both those persons seeking to bring a challenge to a will and those looking to defend it to understand the grounds on which they can pursue a challenge and be advised of prospects of success at an early stage. 

These sorts of cases can often be fuelled on emotion, and it is vital to take a step back and receive a detached, objective view. It can be the best advice that there is no case to run, even though that might be bitterly disappointing but in the long run saves a good deal of further stress, heartache, time, delay and legal cost. Recent case law has been critical of claimants pursuing claims with no merit, and such early advice would have prevented this. 

About the author

Laura Abbott

Associate

Laura specialises in all aspects of contentious probate work and disputed estates.

Laura Abbott

Laura specialises in all aspects of contentious probate work and disputed estates.

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