There is a common misconception that simply by leaving someone out of a Will or by providing for them by making a small bequest that this will be enough to stop them from contesting the Will. The plain fact is that there is no clause that you can include or provision which you can make in your Will which will guarantee that there will be no challenge following your death. However, whilst not being able to completely stop a challenge, there are some simple steps you can take to help make sure that should a challenge arises that your wishes are fully taken into account and that your estate is distributed in accordance with your wishes and not someone else’s expectations.
If you think that there is a possibility of someone contesting your will after your death then the most important step is to instruct a specialist wills and estate planning solicitor to draft your Will. Your solicitor will need to ask you about your marital status, your partners, the children of the relationship and any children of other relationships and to understand whether and to what extent they and anyone else are reliant on you. Whilst they won’t be in a position to tell you who you should or should not leave your estate to, your solicitor will advise as to the potential dangers of leaving a close family member or anyone who is financially reliant on you out of your Will. If you don’t wish to make provision for them then it’s important to understand and to fully document the reasons for this decision. We normally recommend that a letter setting out in detail the reason why that person is being left out of your Will.
Whilst not preventing that person challenging the Will, the letter in most cases will be sufficient to head off any dispute. In the event that an application is made to vary your Will then the letter will be made available to those deciding on whether that person’s challenge should be upheld. These documents can often be a major piece of evidence in these matters, as they are the person’s own words and reasons.
An additional benefit of using a solicitor in cases such as this is that they will also prpepare detailed attendance notes of the instructions outlining the discussions surrounding a person’s omission, so reinforcing the details of the accompanying letter to the Will. There are many grounds to contest a Will such as undue influence, lack of capacity or lack of reasonable provision but you can greatly reduce the chances of any claim succeeding by leaving an explanatory letter with your Will and by providing your solicitor with the background information for retention with their file.
In conclusion, if you want to leave a family member, or a close relative or someone who is financially reliant on you out of your Will then completing your Will with a solicitor is the only option you should seriously consider. This will give you the best possible chance of having your wishes adhered to, for want of a better term, to the letter.