Creating a will is like setting your sat-nav for a smooth journey for your assets after you’re gone. However, just as with any well-planned journey, there are risks of unexpected detours—in this case, a will being contested (usually by a disappointed beneficiary) when you are gone.
Despite meticulous planning, the reality of a will being contested can be more common than many anticipate, and understanding these risks is crucial for anyone thinking about their estate planning.
Disputes are rare when assets are left equally between a set of ‘expected’ beneficiaries (that is, people who might naturally expect to receive something from the estate – children being the most common example), however if assets are left in unequal shares (and there are many reasons people may wish to do this) or alternative beneficiaries, this does mean that disputes around the will are more likely.
Although there are myriad reasons why a will might be contested, some of the more common cases you see going through the courts include the following areas:
1.Testamentary Capacity: Questions often arise about whether the testator (the person whose will it is) truly understood the extent of their estate and the implications of their decisions at the time the will was drafted. This is particularly scrutinized if the testator was elderly or suffering from health issues that could impair judgment and understanding.
2.Undue Influence: Claims that the testator was pressured or manipulated into structuring their will a certain way can lead to contestation. This might come from family members who feel another party took advantage of the testator’s vulnerability.
3.Procedural Issues: Even something as seemingly simple as how the will was signed and witnessed can lead to disputes. A will that wasn’t properly executed according to legal standards is ripe for contestation.
4.Allegations of Fraud: Though less common, accusations that a will was forged or the product of fraud are severe enough to warrant legal scrutiny and can embroil the estate in lengthy disputes.
How to Safeguard Against Contestation
To keep the path clear and reduce the likelihood of a contested will, consider the following strategies:
1.Professional Input: Engaging an Estate Planning Professional to help draft your will can ensure all legal formalities are correctly followed and the document is clear and comprehensive. Having a professional guide the signing and execution of the will is also a great idea if possible to ensure the i’s are dotted and the t’s are crossed (both literally and figuratively).
2.Medical Assessments: If there’s potential for capacity disputes, having medical assessments confirming your capacity at the time of the will’s creation can be invaluable.
3.Open Discussions: Transparent conversations with potential beneficiaries about your decisions can reduce misunderstandings and resentment that might otherwise lead to a contest.
4.Regular Updates: Life changes, and so might your relationships and intentions. Regular updates to your will can reflect your current wishes and circumstances, reducing the grounds for contestation.
5.Clarity and Detail: Clearly outlining your reasoning for particular distributions or exclusions in the will can pre-empt any claims of unfairness or oversight.
The thought that a will can be contested is often uncomfortable, however it is something that is worthy of consideration. Preparing for potential challenges can make all the difference in ensuring your final wishes are respected and that your estate is passed on as you intend, without placing additional burdens on your loved ones.
If you require assistance in preparing a robust will and Estate Planning framework, please don’t hesitate to contact a member of our friendly team.
