In this week’s blog, I have unashamedly re-produced Stephen Oliver’s own blog from The Will Company dated 14 April 2023, with his kind permission, of course, on the steps to follow to make your Will as strong as possible.
A rise in contested Wills has occurred in recent years, and there are several factors that contribute to this phenomenon, such as people living longer (including living longer with medical support). This is leading to the possibility of challenges on the basis of lack of testamentary capacity and shifts from traditional family structures that can lead to disputes between family members. Add to this increasing property prices, it means 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 challenges. While no Will can be truly ‘indisputable’, there are several steps that can be taken.
Here are our top 10:
- Ensure the will is Drafted and Documented by an Experienced Company or Drafter
This means that the Will is more likely to be legally valid and less open to challenge. In addition, it is important to keep good attendance notes that include all the relevant information about the drafting process, as demonstrated by the ruling of Hawes v Burgess .
- Follow the ‘Golden Rule’
Lord Templeman, in his ruling over Kenward v Adams  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 findings”.
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.
- 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.
- 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 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 of those looking to challenge a Will.
- Register the Will with The National Will Register
We consider this essential to enable the Will to be found at the time the Will is needed. Through a Certainty Will Search, executors and beneficiaries can search 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. We always register our stored Wills with www.nationalwillregister.co.uk.
- Store the Will in a Safe Place
It is advised that Wills are held in a place that is safe from being lost or damaged.
Our compact Store Safe, www.storesafeuk.co.uk, has over 25 years’ experience here, and retrieval is free with storage costs of only £15 per annum per person.
If a Will is drafted by us, re-writes are free of charge if stored with Store Safe.
- Revoke any Previous Wills
For avoidance of doubt, it is advised that previous Wills are 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 write ‘REVOKED’ in big red letters across each page of the Will to invalidate its use as the Last Will and Testament.
- 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.
- Consider Making Small Gifts to Previous Beneficiaries
By considering previous beneficiaries in any updated Will, testators are reducing the likelihood of these beneficiaries bringing forward challenges compared to being completely removed from the Will.
- 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 factors 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.
The Will Company in Northampton is our preferred Will writing company which we have used for many years. They have drafted the Wills for lots of our clients. Stephen Oliver, the founder-owner, has vast experience and practical knowledge on the subject of Wills and other related matters. This list of 10 things to make your Will as strong as possible offers excellent advice. You know it makes sense.*
The Financial Conduct Authority does not regulate wills. The information contained within this blog is for guidance only and does not constitute advice which should be sought before taking any action or inaction. All information is based on our current understanding of taxation, legislation, regulations and case law in the current tax year. Any levels and bases of relief from taxation are subject to change. Tax treatment is based on individual circumstances and may be subject to change in the future. This blog is based on my own observations and opinions.