How To Prevent a Contested Will : A Short Guide
There is no way to entirely prevent a will being contested — but you can take steps now to ensure that this is unlikely to happen. Read on for our tips on how to best prevent a contested Will.
1) Summary in 30 Seconds
- You might have a contested will because someone is unhappy with how much they were left by you, or because they believe your Will is invalid in some way.
- It’s important that you make a Will that fulfils the needed legal requirements to be valid and that you update it regularly.
- A lot of contested wills could be avoided if families spoke openly and honestly to one another when it comes to serious matters.
2) Grounds for Challenging a Will
Wills can be challenged in two ways:
- Its status as a valid document
- The fairness of what you have left beneficiaries in the Will.
Someone might be contesting a Will because they were not prepared for the amount they have been left by the deceased, perhaps expecting to receive a lot more. Or else, they might question whether the Will was an accurate representation of your wishes. If the Will was created many years ago, it may contain provisions or gifts that are unable to be fulfilled in the future. This can be a huge headache for your executor(s) who are trying to distribute your estate in accordance with your wishes.
What can you do now to ensure that this doesn’t happen?
Of course, we can’t prepare for every eventuality. But many issues can be avoided with careful forethought and planning. In this case, it means ensuring that your Will is:
(1) Valid (2) Up-to-Date (3) Discussed with loved ones.
These are the grounds on which a Will’s validity can be contested:
- The testator’s capacity. A Will can be challenged on the basis that the testator did not have mental capacity to write a Will.
- A lack of knowledge or approval. The testator did not have sufficient knowledge as to what their Will contained, or didn’t approve the contents.
- Undue Influence. The testator was coerced or pressured into writing the Will.
- Fraud. The Will document was not created by the testator. For example, a forged signature.
- Execution. The Will does not fulfil the legal requirements for a valid Will.
A Will can be contested under the Inheritance Act. Family members, cohabitees and other dependents can argue that the provision (or lack of any provision) in the Will is not sufficient.
The Court will request financial and background information and evaluate whether they are entitled to inherit more than the Will stipulated for them.
There are several things you must ensure that your Will contains in order to be valid and legally binding.
This ensures your will cannot be contested on the basis of it being invalid. It is really important that you have a valid Will. If not, the rules of Intestacy will apply. This means that you and your surviving family have no say in who inherits or what they will inherit.
3) Reasons to Have a Solicitor Write Your Will
- Solicitors keep detailed records and comprehensive notes of your calls and meetings. This can help to create a record of your competency as well as the knowledge and forethought that has gone into writing the Will.
- They will record that you saw them alone, under your own volition and expressed your wishes in your own words. This will help to prevent a claim of undue influence.
- Many solicitors also store the physical Will document – this is much safer than keeping it at home or in another personal place.
- A solicitor’s professional reputation is on the line — therefore they will make doubly sure that every requirement is fulfilled.
- To Do: If you have any reason to think that your capacity at the time of writing your Will would later be challenged, consider also getting a healthcare professional or your doctor to attest to your capacity.
Don’t procrastinate or wait until it is an urgent matter! It’s not good to write a Will under the stress of a life-threatening illness or another distressing life-event. We can make rash decisions that we might later regret — but we also risk dying before we can change it.
To Do :
- If you have any reason to think that your capacity at the time of writing your Will would later be challenged, consider also getting a healthcare professional or your doctor to attest to your capacity.
4) Review Your Will Regularly
Our circumstances, finances and family status change continually over the years. Since you first wrote a Will, you may have:
- Bought and sold properties
- Married and divorced and remarried
- You may have more loved ones to think about — grandchildren, great-grandchildren, nieces and nephews, etc.
It could be heart-breaking if a loved one finds out they have not been considered. They may have been banking on a small inheritance to go to university or put a deposit on their first home. Or maybe there was a sentimental item or family heirloom you promised to them. Such oversight can be prevented by regularly updating your Will.
Even if you don’t think your circumstances have changed much, it is good to review your Will regularly to ensure it is up-to-date and still reflects your current wishes.
5) Discuss It With Your Family
No one likes to talk about death, and it can be particularly difficult to discuss what family members and loved ones are going to inherit. If you are not comfortable talking about money, such conversations can feel nearly impossible. Still, you probably have a good idea about your loved one’s plans and goals for the future and what they are concerned about.
- You want to ensure your spouse lives debt-free and can maintain a comfortable lifestyle.
- Your son or daughter might have shared with you their dream of starting their own business one day.
Of course, it is not always so simple. If you have had issues between family members in the past, you may feel like avoiding such topics so as not to cause arguments or potential rifts in the family. A common reason for contesting a Will is that there has been a lack of open communication over the years. This creates problems if families only come together at holidays and other events, which can be stressful and fraught.
- Try discussing these topics in neutral ground and in a relaxed setting.
- If certain family members are liable to disagree, discuss matters with them separately.
- Try to sincerely listen to their grievances and concerns — if they are not sorted out now then they will be liable to arise when your estate is being distributed.
- For serious matters that you cannot resolve, consider family counselling or using a family Mediator. It may seem extreme, but consider it a kindness to face and resolve differences now so that they don’t become much larger issues in the future.
- Start talking about these your family’s inheritance and what plans it can play a part in for them. If you can show your family that you are open to talking about this, they will start to feel more comfortable with the topic as well.
When should I write a Will?
Do I Need a Will When I own a Company?
If you are owner or part-owner in a company, it will be considered one of your assets that will need to be disposed of after your death. If you die without a Will, your shares in a company will be distributed according to the laws of Intestacy. You won’t have a say what will happen to them or who will get them.