If you’ve drawn up a will the last thing you want to find is that someone challenges it and that your money doesn’t end up going to the people or organisations you want it to. But there are ways to make sure your will isn’t challenged.
1. Discuss your will in advance
Many people find talking about money hard. And talking about death can be even harder. So it’s not surprising that lots of families don’t discuss their wills. It may not be an easy conversation to have, but it’s a good idea to talk through your plans with your family if you can.
SAVVY TIP: If your family doesn’t get on you may not be able to — or want to — discuss it with all of them. But Joan Goss, a specialist in wills and probate with Quality Soilicitors Abney Garsden in Stockport says it’s a sensible step. “Sometimes families agree that children will receive unequal shares, for whatever reason. The important thing is to discuss it in advance otherwise one child could feel rejected or not loved. It will also be less of a shock.”
2. Understand who could challenge your will
Under English law, you can leave your money to whoever you like (Scottish law insists that you leave a percentage of everything except land and buildings to your children and spouse). However, under English law, your husband or civil partner or children (or anyone else financially dependent on you) could challenge your will. “If you’re aware of this when you’re thinking about who you’d like to leave your assets to, it can save a lot of problems later on,” says Claire Harris, a solicitor specialising in wills and trusts at law firm Withers.
3. Make sure you dot the ‘i’s and cross the ‘t’s.
Make sure that your will is properly signed and witnessed. That means it should be witnessed by two people who are not going to inherit as a result of the will and who are not married to someone who will inherit as a result of the will.
SAVVY TIP: Gary Rycroft a partner with law firm Joseph A Jones based in Lancashire says it’s best if the will is signed at the time by both witnesses. “Try not to get one friend or neighbour to sign it and then another one some time later. Get them both in the room at the same time.”
4. Make sure you have mental capacity to draw up a will
A will can be challenged if there’s reason to believe that the person whose will it is didn’t have mental capacity at the time. If someone has a history of mental health issues, has been diagnosed with dementia or if they are elderly and becoming confused or vulnerable, it’s a good idea to have a note from a GP or consultant testifying to their mental capacity.
SAVVY TIP: This can be a delicate matter and the person drawing up the will may be reluctant to go to the GP. But it’s better to ask for medical opinion than for the will to turn out to be flawed.
5. Use recorded evidence to establish capacity at the time
If the person drawing up the will won’t go to the GP another option is to get the drawing up or signing of the will videod. The value of this is that it should show the person acting of their own free will and being able mentally capable of saying what they’d like to happen.
6. Make sure the solicitor makes extensive notes of meetings
Another way that a will can be challenged is if the person drawing it up didn’t understand the document they were being asked to put their name to and/or didn’t understand the consequences of what they were doing. It helps if your solicitor has notes that show what you wanted and that you understood how it might, for example, affect family members who wouldn’t benefit.
7. Have meetings with your solicitor alone
A will can be challenged if someone can show that the person drawing it up was put under pressure or duress. It can be a good idea to take someone into the meeting with your solicitor, if, for example, you have hearing problems or prefer to be supported. But most solicitors will ask the person drawing up the will if this is what they really want to do, and they’ll prefer family members/friends etc not to be present when they do it.
8. Leave a letter of wishes
If you’re drawing up a new will that’s a change from a previous one, or if, for example, you’ve remarried and want to provide for your new husband or civil partner, it’s a good idea to leave a letter of wishes with your will, which will be read by the executors (those who sort out your legal and financial affairs). This can be used to explain why you’re leaving your property and assets to the people who are going to benefit and, if relevant, why you’re excluding others.
SAVVY TIP: You can also leave a letter to be sent to family members that you are excluding, to be sent to them on your death. This can be particularly useful if, for example, you’ve been estranged from a child or other relative.
9. Leave a small gift that will be lost if challenged
Mark Keenan, partner with Mishcon de Reya says you might leave a legacy to the children with a provision that if that person were to challenge the will in any way, they forfeit that money. “That makes it slightly harder for the lawyer advising them who would have to warn that client of the risks of bringing this claim.”
If you’re drawing up a new will that’s a change from a previous one, or if, for example, you’ve remarried and want to provide for your new husband or civil partner, it’s a good idea to leave a letter of wishes with your will, which will be read by the executors (those
10. Write your will so it accommodates future changes
If, for example, you decide you want to leave £1,000 to each of your godchildren, you can write your will so that only those godchildren you have at the time of writing it will benefit or so that any godchildren you have at the time of your death will inherit.
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