Avoiding Challenges to Wills

It is impossible to prevent all challenges to wills you draft but some simple steps will reduce their number and, importantly, reduce the chances of challenges succeeding.

Challenges will normally consist of claims that the deceased:

(1) lacked testamentary capacity, or

(2) did not know and approve the contents of the will.

Claims are sometimes made on the basis of faulty execution but these are less common.

In addition there may be claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Properly speaking an application under the Act is not a challenge to the will as the applicant is not suggesting that the will is invalid. The complaint is that it does not provide adequately for the applicant. This session looks at what the test of capacity is for making a will and the steps you can take to reduce challenges on this basis.

It is possible to have testamentary capacity but to lack knowledge and approval of the contents of a will because of a mistake or misunderstanding. A series of recent case graphically illustrate how easily these misunderstandings can occur and the session will consider how they can be avoided.

Challenges under the 1975 Act are increasingly common. This session looks at how likely claims are to succeed and what can be done to minimise the chances of success where instructions are clearly ‘high risk’.

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Resources:

• Remember A Charity Strategic Priorities 2019 2021 | Download
• Remember A Charity Campaign Supporter Scheme | Download
• Remember A Charity 2020 Impact Report | Download

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Learning objectives:

After this session you will be able to:

• review your practice for taking instructions, and

• identify any changes that might reduce the possibility of challenge.