Protecting and challenging a will
A will is a legal document, and for it to be valid and binding in law, certain rules must be followed. To reduce the risk of a will being challenged successfully, certain precautions should be taken when it is made.
The rise in the value of estates causes more wills to be challenged. Such claims may just be a nuisance, but nonetheless can result in delays, unnecessary expense and the estate being distributed in a way not intended by the deceased.
Preparing your own will can be a cheap option but may prove expensive in the long run if it is not done correctly. Getting the help of a solicitor to prepare a will avoids pitfalls and provides peace of mind.
Ways to protect a will and avoid a successful challenge as to its validity:
- It must be signed in the presence of two witnesses who must both be present at the same time. If this is not done, the will is likely to be invalid and can be challenged by any person unhappy with its contents.
- The person making a will must be of sound mind. They must have “testamentary capacity”. They must understand
- they are making a will and what the consequences will be
- generally what assets they will be leaving in the will and
- the claims of those who might expect to be left something in the will. If there is any doubt about capacity, an opinion from a doctor or mental capacity assessor should be taken at the time the will is obtained.
- A person related to or otherwise close to the deceased who is not provided for in the will can challenge the distribution of the estate under the Inheritance Act 1975. A person close to but not related to someone dying without a will can also make a claim under the Act. The way to avoid such claims and provide a defence against them, is by making a will with the assistance of a solicitor who can prepare a statement explaining the reasons for its contents and the omission of any provision for a potential beneficiary.
- Sometimes, a person may make a will under pressure from someone else. The validity of such a will can be challenged because of undue influence. This can happen due to a variety of reasons. Bullying, physical or verbal violence, are some. These instances do occur. Sometimes they don’t, and unsubstantiated claims are made by a potential beneficiary, disappointed about the content of a will, who are seeking to cause trouble. To reduce the risk of a will being challenged on the ground of undue influence, a solicitor will keep a detailed note of the points discussed and take steps to ensure it is made with the person’s free will and accord.
- Ensure the original will is kept under lock and key, preferably by the solicitor who prepared it. If a will goes missing the law may assume it was revoked by the person who made it before they died.