How to prevent someone from contesting your will

Creating a will is one of the most important steps to ensure that your estate is distributed according to your wishes after your death.

However, to prevent your will from being contested, it is essential to follow key legal principles, some of which have been outlined below:

Seek professional legal advice when drafting the will

The first and most important step in preventing a will from being contested is to seek professional legal advice when drafting the will document. A solicitor or experienced will writer can guide you through the process and ensure your will is valid and properly worded. Professional legal advice can help you address complex issues and ensure the will accurately reflects your intentions.

It can also prevent common pitfalls such as improperly worded clauses or ambiguous language that might lead to confusion or disputes.

Ensure proper execution and witnessing

A will must be executed according to strict formalities to be legally valid in the UK. The most important requirement is that the will be signed in the presence of two independent witnesses, who are present at the same time. The witnesses must also sign the will, confirming they saw you sign it. These witnesses cannot be beneficiaries or spouses of beneficiaries named in the will.

Failure to comply with the proper execution may render the will invalid, leaving your estate to be distributed according to intestacy rules.

Address testamentary capacity

Testamentary capacity refers to the mental ability of the testator (the person making the will) to understand and make decisions about their estate. If someone challenges a will on the grounds the testator lacked testamentary capacity at the time the will was created, this can result in the will being invalidated.

If you are elderly or in poor health, it is especially important to document that you have the mental capacity to make a will (such as a medical professional confirming your capacity at the time of making the will). This can protect your will from future challenges on the grounds of incapacity.

Document your intentions with a letter of wishes

A Letter of Wishes is a supplementary document to your will that outlines your personal intentions and reasoning behind specific provisions. While not legally binding, it can help provide clarity to your beneficiaries and prevent confusion over why certain decisions were made. It can also show that your decisions were made intentionally and with full understanding.

Consider including a no-contest (forfeiture) clause

A no-contest clause (or forfeiture clause) can be an effective way to deter potential challengers. This clause states that if any beneficiary challenges the will in court, they will forfeit their share of the estate. However, these clauses are not always enforceable and depend on the specific circumstances of each case.

Register and update your will regularly

It is essential to keep your will up to date to reflect changes in your life, such as the birth of children or changes in marital status. If you have made a new will, make sure you revoke any previous versions, as the most recent one will be considered the valid document.

It is also a good idea to register your will with a recognised will registration service, as this makes it easier to locate and verify the will after your death, reducing the risk of disputes over which will is valid.

Make adequate provision for dependents

Under UK law, certain individuals, such as spouses and children, may be entitled to make a claim against an estate if they believe they have not been adequately provided for. If you fail to provide for dependents, especially if they are financially dependent on you, they may challenge your will on the grounds of insufficient provision.

To avoid this, ensure that your will makes reasonable provision for your dependents. If you have adult children, stepchildren, or others who might have a claim, consider discussing the provisions of your will with them in advance.

Discuss your will with family and beneficiaries

While it may feel uncomfortable, discussing your will with your family and beneficiaries can help prevent misunderstandings and disputes later on. If your will contains contentious provisions, explaining your decisions can help avoid resentment and reduce the chances of a challenge. Open communication can go a long way in preventing conflicts after your death.

Address potential undue influence concerns

Undue influence refers to a situation where a person is pressured or coerced into making decisions in a will that they would not have otherwise made. If a will is contested on this ground, the court will examine whether the testator was manipulated into making certain provisions.

To avoid this, make sure that no beneficiary or individual is involved in drafting or executing your will in a way that could lead to suspicion. Having a solicitor involved can help ensure that the process is transparent and properly documented.

Avoid gifts to potential challengers

Finally, be cautious about giving gifts to individuals inclined to challenge your will. While leaving gifts to family members or friends is normal, leaving significant gifts to someone who may have a motive to contest your will could lead to a dispute. Be mindful of the potential for conflict and, if necessary, consider documenting your reasons for these gifts in a Letter of Wishes.