Avoiding Challenges against your Will
Unlike many other countries, English and Welsh law has a tradition of ‘testamentary freedom’, which, broadly speaking, means you can leave your estate to anyone you wish when you die.
While this freedom of choice is wonderful, it can lead to aggrieved relatives who may wish to challenge the validity of your will or make a claim against your estate.
Those who have concerns about the validity of a will or feel that they have been unfairly left out have two different avenues to explore. First, is the will valid? For a will to be valid, it needs to be signed, dated and witnessed in the correct manner, you must be of ‘sound mind’, know of and approve the contents of the will and there should be no undue influence. If someone can prove that your will is invalid, then any previous will is likely to stand. If there had never been a previous will, then the intestacy laws will determine who gets your estate and in what proportion.
Alternatively, the will itself may be valid, but does not make ‘reasonable’ financial provision for someone that you should have considered. Spouses, civil partners, children, financial dependants, cohabitees and others fall within the categories of people the law allows to make such a claim. Ultimately, the courts will decide what is reasonable in the circumstances and can make an award accordingly.
The benefit of instructing a solicitor to prepare your will is that they will be aware of these potential dangers and challenges. At Cullimore Dutton, our role is not simply to produce a well drafted document but to make sure your instructions are clear and recorded correctly, to ensure no one is coercing you into something you do not want and, where necessary, to document any explanation as to why certain family members are excluded. Such action may just safeguard your wishes and help defeat a claim in the future.