Here are some practical steps you could take to try and avoid your will being challenged after you’re gone.
Know when you need professional help
Get professional advice for all but the simplest of estates. Click here to read our post about when you should get professional help with making your will. If you don’t do so, you are at the risk of leaving a mess behind, and much of your estate could end up spent on legal fees. Always get professional advice if you’re concerned about anything relating to your intended beneficiaries because, if it’s causing you some concern, then it’s something your beneficiaries could be fighting over later on.
Get professional advice if there is a concern about your mental capacity
If you are over 80 years old, I would advise that you get a professional to make your will because of the number of challenges against the wills of the elderly. Your professional adviser will be aware of the “Golden Rule” for making a will in cases where mental capacity could be an issue and the steps they need to take.
Provide for dependants
Be aware of the potential for family provision claims. There are specific categories of family and dependants who are able to make a claim for provision from your estate if you don’t provide for them. Click here to find out who can make a family provisions claim against your estate.
Safe will storage
Store your will not only safely, but where it will be found. Many intestate estates (where there is no will) are due to the wills never being found. Solicitors will usually store your will for free. There are also dedicated will storage services that you pay for, and some will build the cost into the fee for the will. The will storage fees are generally quite inexpensive. If you store it yourself, you should make sure the storage place is both waterproof and fireproof. Find out more about will storage here.
Make your will tamper-proof
It is important to make sure you bind your will in such a way that it will be difficult to tamper with it. Just stapling the pages together is not safe because it is not difficult for someone to remove a page and then carefully staple it back in the same place. You should also make sure that you don’t tamper with your will after it is made, for example pulling it apart to photocopy it or scan it. You should put it in an envelope and seal the envelope so that you are not tempted to pull it out from time to time to check the provisions. You could spill a drink on it making parts of it illegible. Use a photocopy or electronic copy when you want to check something in your will.
Destroy previous wills
Destroying a previous will is one of the ways to revoke it. Given that you will no longer be around, it is important to make sure your intentions are completely clear. It is probably a good idea to use a professional when you want to destroy your will so that their attendance notes will show that you had a clear intention to revoke that will. There have been cases where a revocation was challenged.
Inform executors of whereabouts of will
However you decide how to store your will, the most important thing is to make sure your executors know where your will is stored. You should also ensure that they know how to retrieve it. For example, if you have it in a locked cupboard, will they know where the key is kept? Or if you have it in a safe, will they have access to the safe? Consider giving them a certified copy of your will, preferably in a sealed envelope, to be opened only in the event of your demise. Also, let your executors know who your will drafter was because they are very likely to have a copy of the original will cannot be found.
If you are making a substantial gift to someone, make sure that person does not draft your will for you. In those circumstances, the law presumes that there are suspicious circumstances surrounding the making of the will, and it is for the person who made the will to dispel those suspicions. This situation often occurs where a family member has experience writing wills. It can be a family member who happens to be a solicitor or even a financial adviser. It would be best in those circumstances for someone else to draft your will for you.
When your witnesses sign your will in your presence, they should write out their names and addresses. It makes it easier to trace them if there is a need to get evidence from them that your will was signed in accordance with the law.
If you are sight-impaired and cannot read or write, then you should make sure that your solicitor supervises the signing of the will.
Sever joint tenancy
Sever the tenancy on any property you own jointly with someone else if you want your share to pass by your will. This is a growth area for claims, and if it is not done, you will not be able to pass your share on by will.
Letters to explain lack of provision
If you have failed to provide for family members or dependants, explain in your will or a side letter why you haven’t provided for them. This is especially important if you are elderly. Sometimes, when a person has been left out of a will, they will bring a claim on the grounds that you lacked mental capacity because you wouldn’t have left them out if you were of sound mind.
To counter such arguments, show that you were aware that this was someone you should provide for but that you chose not to do so, and also say why. If you have made unequal gifts to your children, explain in a side letter why you did so.
Always bear in mind that you will not be there to give evidence if someone brings a claim against your estate. Therefore, think about things that may need to be explained when that time comes and write them down or get your professional adviser to make a note of them.
Explain changes in a new will
If you provided for someone in your old will but left them out of your new will, explain somewhere why you left them out. This is a good reason to have a professional make your will so they can take note of your reasons. If you don’t do that, you can be sure the person who expected to be a beneficiary but has now been left out will be heading to court to claim a slice of your estate. Remember, you won’t be there so it’s important to leave evidence behind that tells the story behind your actions.
Get the right witnesses
Make sure you have the correct people to witness the signing of your will. They should be independent and objective, but even more important, it should not be your beneficiaries because, under English law, if a beneficiary witnesses your will they won’t be able to get anything from your will.
You should always get professional advice when you are unsure. One small mistake and your estate could be eroded through legal fees as your loved ones battle it out in court. Please contact us if you want to make a will and you’re not sure if you need professional advice.