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Contestants for your last Will and Testament

How often do we hear of families permanently falling out over a controversial Will? Perhaps this has happened in your own family? Howard Burns, partner at Manchester law firm Rowe Cohen, explains how to avoid a battle starting up over your Will.

When someone dies there are often family members or friends who are disappointed that they didn't get left enough, or anything at all, of an estate. Getting together enough evidence to contest a Will is complicated and can be expensive.

People must tread carefully; these matters can take years to resolve. With smaller estates, any benefit gained from contesting a Will may be counterbalanced by legal costs draining the estate.

Although the grounds for contesting a Will are limited, there is always the chance a good claim can be made. The key grounds which need to be established to contest a Will are lack of mental capacity, and undue influence or failure to comply with formal requirements.  However, others who feel they have been unfairly overlooked may make a claim under the Inheritance Provisions for Family & Dependents Act 1975. Claimants should be aware that this is not the same thing as claiming a Will is invalid.

Making and distributing copies of your updated Will is advisable if you wish to avoid bitter family wrangles.

There are no formal requirements to make copies of a Will or inform beneficiaries that they are included. However, it is common sense to keep people up-to-date with your plans and to be transparent, particularly if there are particular family issues or conflicts in the background. If a close relative isn’t included in a Will it is good practice to make a declaration in that Will as to the reasons why.

Solicitors should offer a safe storage service where the original copy can be kept. If you want to keep the original then a good solicitor will also retain a copy.  If you update or change your Will then you don’t have to use the same solicitor.

Faking a Will is a criminal offence and offenders could face jail. This is why it is so important that people invest in a professionally prepared Will rather than buying a so-called DIY Will. Getting it wrong can be costly and a straightforward professionally drawn up Will is not as expensive as some people may imagine.

Anybody making a Will should also consider making an Enduring Power of Attorney (EPA) in case of illness or accident which prevents them from looking after their own financial affairs. This allows named and trusted individuals to take care of their financial affairs in those eventualities.

For example, people in the early stages of Alzheimer’s should make an Enduring Power of Attorney (EPA) as long as they understand the nature and effect of the document. In some cases, if the condition is too advanced it may be too late and it would then become necessary to involve the Court of Protection.

However, the procedures are soon to change and it will become more expensive and complicated when the Mental Capacity Act comes into force. People should act now if they want to secure their finances against this eventuality.

1. Inform the family of your plans, especially any Will changes.
2. Ensure that your executors know the whereabouts of the original Will.
3. Ensure your solicitor always has your up-to-date original Will locked away.
4. If a close family member is excluded, record the reasons why in the Will.
5. Have your Will drawn up professionally.
6. Consider nominating an Enduring Power of Attorney (EPA).