Contentious Probate – How to protect yourself and your estate from challenge.

One of the most frequently asked questions we hear is; ‘What can I do to stop a claim against my estate?’ Whilst there are no guarantees that you will be able to prevent a claim against your estate after you have passed away, there are various steps you can take to try and protect your position.  We take a look at some of the options available to you below:

1. Plan ahead

Like with most things, preparation is key. A lot of people see writing a Will as a morbid task which is often put off until the last minute. To avoid a dispute as to whether you have the capacity to make your Will and to avoid any costly mistakes, there is no time like the present to prepare your Will.  It is also important to review your Will periodically.

2. Use a Solicitor

Whilst this may seem fairly obvious, with access to the internet and other resources being readily available to make a Will at home, many people see a homemade Will as a simple solution to estate planning and to save them the cost of using a professional. Making a Will without a Solicitor can often increase the risk of the Will being invalid or challenged at a later date, the costs of such a dispute will undoubtedly outweigh the costs of preparing the Will with a solicitor in the first instance.

A Solicitor will ensure that your Will is validly executed and complies with the formalities of Section 9 of the Wills Act 1837. The Solicitor should also keep a detailed record of your instructions and wishes, which could prove invaluable in the event of a challenge.

3. Prepare a Letter of Wishes

If you followed step 2 above, this is most certainly something a solicitor would advise you to do if there is any likelihood of someone challenging your Will or bringing a claim against your estate. Whilst a letter of wishes is not binding on your Executors, it can explain the reasons why have chosen to exclude certain family members from your estate, which can often deter a claim at an early stage. In the event of a Will challenge, such a letter will help the Court understand your reasoning and will likely be a key piece of evidence.

4. Consider obtaining a Capacity Report

One of the most frequent grounds for challenging a Will is that the testator lacked the requisite testamentary capacity to prepare their Will. If it is likely that questions will be raised about your capacity to prepare a Will, asking a medical professional to prepare a report as to your testamentary capacity is vital. The Law as to testamentary capacity is well settled, with the principles being set out in the case of Banks v Goodfellow. You must be ale to understand what a Will is and the effects it has, in addition you should be able to identify the extent of your assets and consider claims of family members. Capacity can fluctuate and it is therefore important to follow the ‘Golden Rule,’ as set out in the case of Kenward v Adams, and obtain a medical opinion in support of capacity when preparing a Will. It is also advisable to ask your GP to act as a Witness to the Will for additional protection.

5. Consider claims of family members

If you think that a certain family member would most likely challenge the fact that you had left them out of your Will, consider leaving them a small legacy to prevent a challenge, together with a Forfeiture Clause. Will drafting can be complex and it is therefore important to discuss the specific options available to you when providing instructions to your solicitor. If you have young children or are unmarried, it is important to prepare a Will to protect your loved ones from a legal battle in the future.

6. Keep records

Advising your close family or friends as to where you have stored your original Will or even informing the person you have appointed as Executor is best advised. This will avoid any confusion following your death and help ensure that your estate is administered in accordance with your wishes.

The cost of preparing a Will may seem like an unwanted expense, however it is always best to think of the bigger picture and spare your loved ones the costs of a lengthy litigation dispute when you are gone. It is important that you protect your assets and ensure that you are leaving your estate to whoever you wish.

Victoria Townsend is a Solicitor in our Contentious Trusts and Probate team and can be contacted on 01332 225429 or victoria.townsend@smithpartnership.co.uk