In our last Expert Webinar, Scott Taylor and Alex Watson-Lee of Moore Barlow outlined their steps towards making a Will ‘indisputable’.
A rise in contested wills has been observed in recent years, and there are several factors that contribute to this phenomenon such as people living longer (including living longer with medical support, leading to the possibility of challenges on the basis of lack of testamentary capacity), shifts from traditional family structures that can lead to disputes between family members, and also increasing property prices mean that there is more at stake in terms of inheritance.
To prevent a Will from being successfully contested, it is important to ensure that Wills are drafted in a manner that would allow them to hold up against any such challenges. While no Will can be truly ‘indisputable’, there are several steps that can be taken by both professionals and testators. Here’s 10 of them:
1. Ensure the Will is drafted and documented by a professional
One key step is to ensure that the Will is drafted by a professional. This means that the Will is more likely to be legally valid and less open to challenge. In addition, it is important to draft a detailed Attendance Note that includes all the relevant information about the drafting process, as demonstrated by the ruling of Hawes v Burgess [2013].
2. Follow the ‘golden rule’
Lord Templeman, in his ruling over Kenward v Adams [1975] established what he coined as the ‘golden rule’:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.
In short, if there is any chance that the Will could be reasonably challenged on grounds of testamentary capacity, a medical practitioner should witness or approve the Will, if they are satisfied that the testator qualifies as capable.
3. Draft a letter of wishes or an explanatory letter
By writing a letter to add to the Will that explains the testator’s wishes, this can help provide context and further information that can help prevent any disputes that may arise.
4. Include a Non-Contest Clause
If there is a primary concern around the Will being contested, one tool that can deter such challenges is to include a Non-Contest Clause. This clause means that any beneficiary who contests the will forfeits their inheritance as stated in the Will. In many cases this would skew the cost-benefit for those looking to challenge a Will.
5. Register the Will with The National Will Register
Registering the Will with The National Will Register is essential in ensuring that the Will can be found and wishes be known at the time the Will is needed. Through a Certainty Will Search, executors and beneficiaries can search for the location of a Will with The National Will Register’s 10 million plus registered Will records as well as geographically targeted searches of unregistered Wills. This secure and confidential service reduces the chance of a Will being challenged by helping to validate which Will is the last Will. As of writing, one in five found Wills impact estate administration which highlights the importance of registering the Will.
6. Store the Will in a safe place
Whether it is held with solicitors, third party, or safe place, it is advised that Wills are held in a place that is safe from being lost or damaged.
7. Revoke any previous Wills
For avoidance of doubt, it is advised that previous Wills are either or revoked by the testator, by destroying the document. If you have been advised to keep a copy of the Will or not destroy it entirely, you could also write ‘REVOKED’ in big red letters across each page of the Will to invalidate its use as the Last Will and Testament.
8. Update the Will regularly
By updating the Will regularly, the likelihood of it being disregarded for legal precedence is greatly reduced. For example, a Will is revoked upon marriage and updating the Will becomes essential for it to remain valid.
9. Consider making small gifts to previous beneficiaries
By considering previous beneficiaries in any updated Will, testators are reducing the likelihood of those beneficiaries bringing forward challenges compared to being completely removed from the Will.
10. Discussing the Will with family and beneficiaries
By discussing the Will with loved ones and those included in the Will, testators reduce the chance of any shock factor when it comes to the contents of the Will, as well as increases the number of people who know the wishes in the Will, so a challenge to the Will could be addressed without the need for legal proceedings.