Legal advice from Jennifer McGuinness, Associate at FDR Law specialising in Will Disputes
Q: How can I avoid my Will being successfully challenged?
A: Wills are challenged for many reason; e.g. lack of capacity, ‘undue influence’, failure to provide for certain people or technical defects.
It is impossible to prevent a disgruntled person bringing a challenge, but you can make your Will as robust as possible.
- Pick your solicitor / Will Writer with care - Choose a recognised specialist and check if they are a member of STEP (Society of Trust & Estate Practitioners). There are stringent membership criteria, so you can be confident that they will have the relevant knowledge and expertise.
- Give instructions directly in person - avoid a beneficiary giving instructions on your behalf and attending the appointment with you if possible; this can excite suspicion of undue influence. If this is unavoidable ensure the reasons are recorded
- Letters of Wishes - if disinheriting anyone who might expect to benefit, or treating children unequally then it is recommended that you have a Letter of Wishes written with objective legal advice. This should be clear, concise and not hostile or emotive.
- Medical Evidence - if you suspect that your Will could be challenged owing to mental health issues or age, obtain medical evidence from a qualified practitioner. You should seek professional advice to instruct a suitable practitioner to provide a report. Where a Will is challenged on these grounds, the report and letter of instruction will be scrutinised. A short one-line letter from your doctor will not suffice.
- Gifts - if you leave someone out of your Will who might ordinarily expect to benefit, consider leaving a small gift and include the justification of your position in a letter of wishes. This will demonstrate that you had given due consideration.