When you write a will, you expect your wishes to be upheld, but that’s not always the case. It is possible for those left behind to contest a will if they believe it is invalid or doesn’t make reasonable financial provisions for certain relatives or dependents. As the number of contested wills rise, it’s important to understand why this is and what can be done to minimise the risk of it happening.
In simple terms, a will contest is a formal objection raised against a will. There are several reasons why someone may choose to contest a will, which can broadly be broken down into two categories:
- The validity of the will: Most will contests focus on the validity of the will and there are reasons why this may be called into question. Among the arguments of contesting a will are lack of valid execution, undue influence, lack of knowledge and approval, and testamentary capacity.
- Reasonable financial provisions: Certain people can also make a challenge to your will by claiming that it doesn’t make reasonable financial provisions for them. Among the people that can do so are a spouse or civil partner, a child, a former spouse or civil partner, or a person that was maintained by you immediately prior to death. Many factors will be taken into consideration when assessing reasonable financial provisions, including the financial needs of the applicant and the size of your estate.
Figures from HM Courts and Tribunals show that the number of disputes of wills has increased. Analysis conducted by Direct Line indicates that disputes regarding application for probate increased by 6% in 2018. It’s a trend that looks set to continue too. A quarter of Brits, the equivalent of 12 million people, would be prepared to contest a loved one’s will if they were unhappy with it.
Why is the number of will contests rising?
There are many reasons why someone may choose to contest a will. However, the overall trend has been linked to two key factors.
First, property prices have risen enormously over the last couple of decades. As property is often one of the largest assets a person owns, this has led to the value of estates rising significantly. As a result, there’s a greater reason for those left behind to dispute a will they don’t agree with and pay the associated legal fees.
Secondly, a complex family situation can make splitting up an estate far more challenging. Marrying more than once, having children from different relationships and other influences can have an impact on disputes.
Minimising the chances of your will being disputed
With disputes against wills rising, it may be wise to take action to minimise the chances of a dispute occurring in the first place and reduce the likelihood that a dispute would be upheld. Among the steps to consider taking are:
1. Speak to loved ones: Whilst you may not want to discuss the details of your will, it can prevent loved ones from being shocked by your decision. If you think they will be surprised by how your estate is set to be distributed, explaining your decision and reasons behind it can help ensure you’re all on the same page.
2. Make sure your will is properly executed: You have two options when writing a will: DIY or use the services of a solicitor. A solicitor will cost you, but they can offer guidance on ensuring your will is executed properly and reduce the chances of questions around the validity of it being raised. If you choose to go down the DIY route, make sure you fully understand the process and the boxes that need to be ticked.
3. Prove medical competency: A common reason for disputing a will is that the person making it didn’t have the mental capacity to fully understand what they were doing. For instance, if they had been diagnosed with dementia. This can be countered by speaking with your solicitor or doctor about your ability to make decisions and having this in writing.
4. Be aware of undue influence: Another common ground for dispute is that the person faced undue influence when writing the will. This would have to be proved by someone making an application against your will. However, ensuring the solicitor’s notes state you fully understand the decisions you were making and had reasons for doing so can help.
5. Be as precise as possible with the wording: Ensure your will is written as clearly as possible. Ambiguous wording can make it easier for those that want to dispute your will to do so. Have a clear plan in mind about who you want to benefit from your estate and how before proceeding to help with the process.
6. Provide details of exclusions: If you plan to specifically exclude someone from your will who would normally inherit, such as a spouse, civil partner or child, you can provide details as to why. Should they then make a claim against your will, this can give a clearer picture of your decision and why it’s one you reached.
7. Add a letter of wishes: A letter of wishes isn’t legally binding. However, it can be used to state in your own words who you want to benefit from your estate and why. Should a dispute be raised, this can then be used against it. Whilst it may be tempting to write an emotional letter of wishes, it’s best to stick to the facts.
8. Regularly review your will: Over time, your wishes are likely to change as your circumstances do. As a result, so should your will. It’s advisable that you review your will every five years and following big life events, such as getting married, divorce, or as your family grows to ensure it reflects your current situation.
Please note: Will Writing and Estate planning is not regulated by the Financial Conduct Authority.
