How to future-proof your will and help prevent it from being contested

James Antoniou of Co-op Legal Services looks at common reasons for contesting a will and precautions you can take.

Why wills get contested

When you make a will you’ll have a number of decisions to make about what you would like to happen to your estate when you die.

It’s not just a case of who you would like to inherit from you. You’ll also need to consider factors such as how much someone receives and at what age, who’s going to be in charge of carrying out the terms of your will, who will be guardian of any young children you may leave behind, etc.

These decisions are unique to each individual, based on their circumstances. Therefore a person’s will is a reflection of their wishes at that particular time in their lives. However, it’s important to recognise two things:

1. Everyone’s personal and financial circumstances will change as life progresses, and these changes may affect how they want their estate to be dealt with after their death.
    
2. People’s reasons for making certain decisions are not necessarily going to be known or understood by their friends or family.

As a result, a will may contain an unexpected gift or perhaps exclude someone who was expecting a gift. If this happens, enquiries can be made about how the will was made, the circumstances surrounding it and whether the will really is a true reflection of the person’s wishes.

According to new research from Co-op Legal Services, more than half of Brits are expecting an inheritance from someone they know (51%) with more than a quarter (26%) assuming they’ll inherit something as the next of kin.

Find out more about writing wills and Coop Legal Services here.

Keeping your will up to date

It’s really important that your will reflects your current wishes, so keep it up to date.

If your wishes change but you don’t formally update your will, the existing version will be legally recognised as your final wishes.

Also, if you get married or enter a civil partnership then any existing will in place is automatically revoked (unless you actually stated in that will that it was being made in contemplation of this marriage).

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Future proofing your will

A well-drafted will should be future proof.

For example, even if you don’t have children, you can still include “my children” as a class of beneficiary under your will, so if you have children when you die they can still benefit.

If you have no children then that gift in your will simply won’t take effect. Similarly, if you only have one child now but expect to have more in the future, then you can refer to “my children” in your will.

Also consider that anyone named in your will could die before you, and think about what you would like to happen in that event. You can name substitute beneficiaries, executors and guardians if you want to future proof your will against these circumstances.

Can you leave your estate to whomever you want?

Yes and no. It’s commonly thought that your will is your final say in how your estate is to be distributed once you've died. In the vast majority of cases it is, but there are also circumstances where this isn't the case.

Under English & Welsh law, people are given the legal right to set out who they want to be their beneficiaries. This is called Testamentary Freedom.

This is not something which is offered in all countries. For example, in France they have a system of forced heirship rules which means that the law dictates who must benefit from your estate, or a proportion of it, when you die.

Testamentary Freedom means that you are free to name whoever you choose in your will and you don’t have to regard your spouse, child or anyone else. You are given the legal right to disregard your family and leave everything to charity if you want to.

However, in order to counterbalance this freedom, the law in England & Wales gives certain people to right to challenge a will. This is dealt with by the Inheritance (Provision for Family and Dependents) Act 1975.

This Act is designed to enable people who have either been excluded from a will, or feel that they haven't been left enough, to bring a claim against a deceased's estate after their death.

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Who can challenge your will?

Only certain people are eligible to bring a claim under this Act. These are:

• a spouse or civil partner
• a former spouse/civil partner who hasn't remarried or re-entered into a civil partnership
• the deceased's children or someone treated as the deceased's child such as a step or foster child
• a person who has been living with the deceased for the two year period leading up to the deceased's death
• a person who was being financially maintained by the deceased while they were alive

There have been a significant number of cases brought before the Courts over the years where challenges under this Act have been made. The outcome of these challenges are usually determined by the circumstances of each individual case.

Preventing a challenge

It’s impossible to exclude the application of the Inheritance Act under your will.

However, one aspect which the Court is likely to be interested in when assessing a claim is the reason why you decided to exclude a particular person from your will, or limit the amount you wanted them to receive.

These reasons may be highly personal, in which case we wouldn't recommend you write them in your will as it could become a public document if Probate is needed on your Estate.

Instead, you could write a side letter, sometimes called a Letter of Wishes, which allows you to express your reasons. The Letter of Wishes is in addition to your actual will but can be usually stored alongside it.

If your will is challenged then the Letter of Wishes could show that you are making a conscious decision to exclude a certain person or limit what they receive.

It also enables you to support your other decisions, such as why you have left a gift to a particular charity. You could explain, for example, that you have a particular connection with the charity or that you received help from them.

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Testamentary capacity

One of the most common ways a will can be challenged is someone alleging that you didn’t have the required testamentary capacity to make a will.

Having ‘testamentary capacity’ broadly means that when you make your Will, you must be able to understand:

• That your beneficiaries will receive your assets
• The extent of your ‘Estate’ (meaning everything you own)
• The implications of including/excluding certain people as beneficiaries
• You’re not being influenced into making decisions by others

If you are found to have lacked testamentary capacity when you made your will, your will could be deemed invalid.

It’s also possible that someone could challenge the validity of your will for reasons of fraud or undue influence or perhaps because they believe you lacked knowledge and approval of the contents of the will.

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Protecting your will

Whilst you cannot take away someone’s legal right to bring a claim or allege that your will is invalid, you can take the following steps to reduce the risk of a claim being successful:

Have your will professionally written by an organisation regulated by the Solicitor’s Regulation Authority. They will keep a clear record of your instructions and what you discussed which is vital evidence if it is ever alleged that you didn’t understand the will and its effect.

If you are potentially vulnerable then you may be advised to have a medical assessment with your GP around the time of making your will to confirm your testamentary capacity. You can also ask your GP to act as one of the two witnesses needed when you sign your will. 

Write a separate letter (which can be stored alongside your will) explaining in detail why you have decided to exclude a certain person (or persons) from your will. In this letter, also detail reasons why you have decided to include certain beneficiaries. For example, if you are leaving your estate to charity, make it clear why you have chosen them and the extent of your existing relationship with them.

James Antoniou is head of wills at Co-op Legal Services. The views expressed in this article do not necessarily represent those of loveMONEY