Protecting your will from future challenges - practical guide

Recent years have seen an increase in contentious probate cases in England and Wales, with more individuals challenging wills through the courts. Understanding how to make your will as robust as possible against potential challenges is crucial for ensuring your final wishes are respected.

Understand the grounds for challenge

To effectively prevent challenges to your will, it's essential to understand the common grounds upon which wills are typically contested:

• Lack of testamentary capacity

• Undue influence

• Lack of knowledge and approval

• Improper execution

• Fraudulent or forged wills

• A close relative making a claim under the The Inheritance (Provision for Family and Dependants) Act 1975 claiming omission or being given less has resulted in hardship

How to make your will difficult to contest

• Seek professional legal advice - having your will drafted by a qualified solicitor provides significant protection against future challenges. A solicitor will ensure proper execution of the document and can assess your testamentary capacity. They will also maintain detailed records of your instructions and reasoning, which can be invaluable if your will is later challenged.

• Document your mental capacity - if you anticipate challenges to your mental capacity, consider obtaining a medical opinion at the time of making your will. This is particularly important if you are elderly or have been diagnosed with a condition that could affect your decision-making abilities. The doctor's report should confirm that you understand the nature and effect of making a will, the extent of your estate, the claims of those who might expect to inherit and the impact of including or excluding certain individuals.

• Record your reasoning - provide a detailed letter of wishes explaining your decisions, particularly if you are excluding close family members or dividing your estate unequally. This document can offer crucial context if your will is challenged later.

• Consider including a no-contest clause - while not always enforceable, including a no-contest clause (also known as a forfeiture clause) can discourage potential challenges. This clause typically states that any beneficiary who contests the will forfeits their inheritance.

• Regular updates and reviews - review and update your will regularly, particularly after significant life events such as marriage or divorce, birth of children or grandchildren, acquisition or disposal of major assets.

• Proper execution and storage - ensure your will is properly executed with two independent witnesses who are not beneficiaries or spouses of beneficiaries. Store the original document securely, preferably with your solicitor, and inform executors of its location.

• Address lifetime gifts - document any significant lifetime gifts and ensure they are properly recorded. This can prevent accusations of undue influence or challenges based on the Inheritance (Provision for Family and Dependants) Act 1975.

• Video records - for high-value estates or situations where challenges are likely, consider video recording the will signing ceremony. This can provide evidence of your capacity and freedom from undue influence.

• Independent solicitor meetings - meet with your solicitor alone to demonstrate independence from potential influencers. If assistance is needed due to physical disabilities, ensure this is properly documented.

• Witness selection - choose witnesses who are of good character, likely to be available in the future if needed to testify, younger than you, not connected to potential challengers

We can help

While no will is completely challenge-proof, taking these precautionary measures significantly reduces the risk of successful challenges. The key is to demonstrate clear capacity, freedom from undue influence, and careful consideration of your decisions.

For complex estates or situations where challenges are likely, seeking comprehensive legal advice and implementing multiple protective measures is strongly recommended. The cost and effort of properly protecting your will is minimal compared to the potential expense and family discord of a contested probate.