No Will is completely safe from challenge. However, clear advice, careful drafting and a good file note can reduce the risk of a dispute and give the executors useful evidence if the Will is challenged.
When taking instructions and preparing a Will, consider the following practical steps:
- Keep a clear file. Record the client’s instructions, the reasons for important decisions, any discussion about possible claims and the steps you took to check that the client understood the advice. Detailed attendance notes may be important evidence if the Will is later challenged.
- Consider capacity at the outset. If age, illness or cognitive impairment may lead to questions later, consider obtaining medical evidence at the time. Do not just note ‘client had capacity’ as this is easy to challenge. Record how the client meets each part of the Banks v Goodfellow test. Consider the “Golden Rule” and note why it was or was not followed.
- Take instructions from the client directly. See the client alone wherever possible. Take particular care if a beneficiary arranged the appointment, helped to give instructions or will receive much more than others. Record the steps you took to check that the client was acting freely and understood the Will.
- Ask about unusual or changed decisions. If the client wants to exclude a family member, divide the estate unequally, benefit someone outside the family or leave a large gift to charity, ask why. Compare the instructions with any earlier Wills and record the reason for the change. Consider a separate statement of reasons, but keep it factual and measured.
- Identify possible claims. Ask about spouses, former spouses, partners, children, dependants and anyone the client supports financially. Record the person’s relationship with the client, any promises or assurances, any financial support or unpaid work, and the client’s reasons for the proposed provision. Consider whether there may be a claim under the Inheritance (Provision for Family and Dependants) Act 1975, proprietary estoppel or contract.
- Manage expectations about excluding someone. Explain that no wording can stop an eligible person from making a claim under the 1975 Act. Good evidence may help the executors respond to a claim, but it cannot guarantee the outcome. Record the client’s reasons and the matters a court may consider, including the claimant’s needs, the size of the estate and the client’s obligations to others. A connection with a charity may be relevant where the charity benefits, but it will not prevent a claim.
- Build a clear financial picture. Keep details of the client’s assets, liabilities, income, jointly owned property, lifetime gifts and regular financial support. This will help explain the instructions and identify assets that may not pass under the Will. If lifetime gifts are being considered, discuss affordability, tax, care needs, possible undue influence and the need for specialist advice.
- Check the Will and supporting documents together. Make sure the Will, any letter of wishes and any statement of reasons are consistent and accurate. Explain that these documents may become evidence in a dispute and will not decide the outcome on their own. Avoid unsupported allegations or unnecessary detail.
- Check signing and practical arrangements. Record that the client read or heard the Will, understood and approved it, and signed it correctly. Note who was present and any help with reading, language or communication. Consider whether the chosen executors are suitable and sufficiently independent, especially if family conflict is likely. Encourage the client to review the Will after major changes in family, finances, health or dependency.
Remember
You cannot stop someone from challenging a Will. The aim is to prepare a valid Will that reflects the client’s wishes and is supported by clear evidence that the client understood the decisions and made them freely.
If you are concerned that a Will may be challenged, our contentious probate team can work with you at the drafting stage to identify risks and help protect the client’s wishes.