How to avoid challenges to your Will

How to avoid challenges to your Will

Although there is no way to prevent someone from challenging your Will after you die, there are steps that you can take to reduce the risk of a successful challenge.

Obtaining legal advice

Having a solicitor prepare and witness the signing of your Will should ensure that:

• The Will is carefully drafted;
• The terms of the Will reflect your wishes;
• The terms are legally enforceable and are capable of being implemented by your executors after your death;
• The Will is properly executed.

It may also reduce the risk of someone unduly influencing you into making the Will. This is because the solicitor will need to meet with you alone to verify that your instructions truly reflect your wishes and are not the result of pressure from an outside source (e.g. a family member or friend). An experienced solicitor will be aware of those issues and should address any concerns with you in detail.

Furthermore, it will be extremely difficult for someone to claim that the Will has been forged if the Will has been prepared by a solicitor and the same solicitor has witnessed it’s execution.

Obtaining a medical report regarding your capacity

Where you are elderly or vulnerable and/or there are concerns about whether you have mental capacity to make a Will, or even where a post death challenge is anticipated due to difficult relationships within the family, a solicitor will be able to assist you with instructing a suitably qualified medical professional to assess your capacity and prepare a report confirming that you have capacity to make a Will.

Obtaining evidence of capacity shortly before you make a Will will ensure that your executors have the best evidence should they face a post death claim against your estate on the basis that you lacked capacity to make the Will.

Leaving a small legacy to a potential claimant

In order to ‘head off’ a potential claim it might be worth leaving a small amount of money (a pecuniary legacy) to a potential claimant. Knowing that they will receive something from the estate may be enough to persuade them not to challenge the Will.

Including a ‘non contest clause’ in your Will

A non contest clause is a clause in the Will which is designed to encourage a person to refrain from taking action against the estate by threatening that any such action will lead to them losing their entitlement under the Will. Depending on the circumstances such a clause may be enough to dissuade a person from challenging the Will.

A non contest clause will only really be effective if you are leaving something to that person under your Will (see above) as they may not want to risk losing that entitlement if they bring a post death claim.

Such clauses need to be carefully drafted if they are to be upheld by the Court and so advice from a solicitor will be required.

Michael Culver

Michael Culver

Partner at Bolt Burdon Solicitors

Lisa Morgan is a Partner at Hugh James, a top 100 UK law firm, and head of the Nursing Care department.

She is regarded as an experienced and specialist solicitor leading in the niche area of continuing healthcare.

She has acted for hundreds of clients in England and Wales in challenging current and retrospective decisions to refuse NHS funded continuing healthcare to long-term nursing home residents.

Her department has successfully recovered over £100 million in wrongly paid nursing fees since its inception in 2006.

Lisa won the prestigious and highly acclaimed Law Society Junior Lawyer of the Year 2010 Excellence Award due to her work in an area largely neglected by the profession, for encouraging others to get involved in this field of law, and for the large amount of pro bono work and mentoring she undertakes. In 2015, she received the Cardiff Law Society Simon Mumford award.