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Contesting a Will in court - Part 3. How to guard against this happening.

Sep 30, 2019

How can we guard against a Will being contested?
Over the last two months, we’ve been looking at the occasional, unpleasant scenario of contested Wills.

In the first blog on the topic, we examined your options when you’ve been inexplicably left out of a relative’s Will. We looked at a variety of circumstances where contesting such a Will would be fruitless; where there’s no legal basis for a challenge - a waste of your time and money.

Guaranteeing the integrity of your Will

Last month, our attention shifted to those instances in which a challenge to a Will might have a reasonable chance of success. Now, in the final blog on this topic, let’s explore the extra checks available to you when drafting your Will - ensuring we protect your beneficiaries from having your wishes challenged in court.

One of the difficulties when trying to deal in court with a contested Will is that so much is left to the recollection (or claimed recollection) of witnesses. A Will might have been drafted, witnessed and signed decades ago. How an earth can anyone claim to recall the state of mind of the individual making the Will or the circumstances in which it was made all those years back?

I’m often astonished by how frequently I hear of the drafting of a Will without any kind of checks. If I were to draw up a Will with you, I’d use two documents, which together go a long way to ensuring that your wishes are clear and legally binding. Should a disgruntled claimant contest your Will in court, these documents provide critical evidence to demonstrate your Will is in order and valid.

Will Clarity Statement

We complete this when you first instruct me to prepare your will. The purpose of this form is to make clear all the circumstances surrounding the making of the Will. Among the issues covered, the statement clarifies

-          who you are

-          how and why you’ve decided to make the Will

-          that your new Will renders redundant any previous Wills

-          that you’re of sound mind and fully understand the Will-preparation process

-          that you can see or hear and communicate with me

-          that I’ve noted the reasons for which you wished to change any previous Will

-          that, during the consultation, there was at least one other person present

-          that no-one was putting undue pressure or influence on you regarding the writing of the Will

Statement of Execution

This form is completed at the point that you ‘sign off’ the Will. When you finally sign your Will, there must always be at least two witnesses - witnesses who are completely independent, who aren’t beneficiaries. If you have no-one who might count as an independent witness, then your Will writer will bring witnesses on your behalf. The points covered in the Statement of Execution include

-          whether there has been any change in your physical or mental state since our first meeting

-          a declaration that there are no signs of undue influence since the first meeting

-          whether there are any indications of fraud against you

-          who will be storing the Will

Two vital steps

When you choose to make or re-write your Will, you’ll want to be sure that your wishes are properly carried out. Avoid the unpleasant prospect of a difficult and distressing court case - one which will have the lawyers rubbing their hands in eager anticipation! Make sure that your Will writer provides both a Will Clarity Statement and a Statement of Execution.

And, of course, if there’s anything about which you’re unsure …

Contact Tim Mullock on 01234 713021.
Or email Tim.Mullock@AdeptAssetSolutions.co.uk.

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