Protect your estate against Will Challenges
There may be many reasons to exclude someone from your Will: a family estrangement; recognition that one of your children is financially successful while another may need more help; or you may have no immediate family and want to favour close friends over distant relatives.
But the massive rise in property values over the last twenty years has led to a similar rise in the number of Wills contested in court, as estates of previously little value become worth fighting over.
So what are the best steps to take to ensure your wishes are respected after you are gone?
A clear Letter of Wishes
A Letter of Wishes is a document that accompanies your Will, outlining details such as lists of assets and where they/their paperwork are located; who to notify in the case of your death; your funeral plan; guidance for your Executors or Trustees; and instructions on the raising of any surviving minor children.
It is also the appropriate place to outline your reasons for excluding someone from your Will, or leaving them a smaller inheritance than other members of your family. The more factual detail you can include, the harder it will be to contest the Will (although you should refrain from expressing anger or a desire for revenge – this might work in your disfavour later).
And in the wake of the Melita Jackson case, it is advisable to include as much factual detail as you can about who you are leaving your estate to and why – particularly if it is to a charity or other organisation, rather than a person. Do you have a personal connection? Have you worked with the charity or organisation, or received support from them in the past? Again, the more factual detail you can include, the better to support your wishes.
Talk to your family now
If there is no rift in the family, but you have decided to exclude or reduce an expected inheritance for other reasons – for example, you believe one adult child needs more financial support than another, or one child has given up considerable time or opportunity to support you, or to work in the family business – then talk to your family as soon as you have made your Will.
Don’t assume they will understand after you are gone (or just put it off because you see it as private, or an uncomfortable subject). Although you may see it logically as money, and not love, that has been unequally shared out, often the adult children left behind do not see it that way.
So think carefully about how you want your children to feel after you’ve gone. Imagine if you’d passed away yesterday – what would you wish you’d done? And would you want to go knowing all your children felt loved and cared for, or that they would feel shocked, betrayed and rejected in a way you never intended? These are the kinds of ill-feelings that lead to will challenges and family feuds.
Consider a Trust
If you strongly suspect that one of your family will contest your will after you are gone, you can avoid challenges altogether by placing money and/or assets into a Trust that can come into effect immediately, or after your death. This trust can benefit those you wish to leave your assets to, and is not counted as part of your estate.
This means it cannot be challenged in court, as it does not form part of your Will.
If you would like to find out more about the benefits of setting up a trust, read our free guide: ‘What is a Trust and how will it protect your Loved Ones?’
Ensure your Will is evidently valid
This means not only having your Will or estate plan properly drawn up and witnessed, but taking extra care to make sure there can be no claims that you were ‘unduly influenced’ in the design of your Will, or that you were not of sound mind when the Will was made.
When you meet with a legal professional to draw up your Will, attend alone if possible, so that the person accompanying you cannot be accused of influencing or coercing you. If you must be accompanied, try to ensure that the person with you is not a beneficiary of your Will.
If you are over 70 years old, or have ever suffered from any form of mental illness or impairment, then it is prudent to ask your GP for a ‘capacity report’, stating that you are of sound mind and considered capable of making legal decisions.
Consult a Professional Will Writer
To assist you in drawing up a valid Will or estate plan that correctly implements your wishes, it is important to consult an experienced professional.
But how do you distinguish someone with merely the correct paper qualifications, from someone who can genuinely write the appropriate Will or estate plan for your unique circumstances?
A good Will Writer should be able to advise you on the best plan to ensure your assets are shared out in the way you want, reduce your exposure to Inheritance Tax, help you to set up Trusts, advise on Lifetime Gifts and even (if you want) help you to plan your funeral.
The cost to your loved ones of engaging a poor Will writer can be immeasurable.
If you’d like to book a free consultation with one of our legal experts, book online or call 01342 477 102 and quote ‘5 Steps to a Watertight Will‘.
This article is for general information only and does not constitute legal advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.