Plan Ahead When Defending A Will, Warn Litigation Solicitors29th May 2014
People making wills can no longer assume they will go unchallenged - they must take the proper steps in advance to defend them, warn litigation solicitors.
Contested wills are on the increase partly because of the rise in divorce, remarriage and cohabitation.
Children from second marriages, wards and former cohabitees are just some of the potential claimants who may sue for a slice of the estate.
Increasing media publicity surrounding the contesting of celebrities’ wills is also making challenges more likely, say lawyers.
Coles Miller litigation Partner Simon Steele-Williams said: “This is definitely an emerging trend. The days of making a will without going through the ‘what ifs’ are now long gone.
“You have to think about possible challenges when drawing up your will,” added Mr Steele-Williams who is also the President of Bournemouth & District Law Society.
Defending a will means making preparations well in advance. Leaving it until later risks weakening a future defence.
There is also the possibility that death may come unexpectedly - before a defence has been properly prepared.
Mr Steele-Williams advises two main lines of defence: in cases of uncertainty, consider obtaining a medical report to confirm mental capacity and a lateral wishes document to explain the reasons behind the bequests.
The testator - the person making the will - should first instruct their solicitors drawing up the will to approach their GP. The lawyers should ask the doctor to assess the testator’s mental capacity.
Another option would be to see a specialist consultant whose opinion would carry greater weight, further strengthening the case of the testator.
But getting a medical report is not a watertight defence. There are several potential pitfalls which could still leave the will open to challenge:
- Not everyone can turn to a family GP they have known for years. In an increasingly mobile society, people change GPs more often. In bigger surgeries, patients may not see the same GP each time - they may see a locum.
- If the medical report is old, the challenger may suggest that the testator’s mental capacity has waned since the document was drawn up. Even a few months can have an impact - but an older medical report is better than none at all.
Drawing up a lateral wishes document that outlines the reasons for including someone in a will - or for excluding them - adds weight to the will itself.
It can prove to the court that a decision has not been taken lightly, that significant consideration has been given to it.
But (unlike the will) it is not a public document and nor is the medical report. So they can be used to convey important information to the court while still maintaining a degree of family privacy.
However, the medical report and the wishes document should be reviewed regularly - like the will itself - to ensure they still reflect the testator’s current financial and family circumstances.
Dorset-based Coles Miller has 14 Partners and 115 staff based at five offices in Bournemouth, Poole, Broadstone, Charminster and Wimborne.
For more information about defending or contesting a will, contact Simon Steele-Williams at Coles Miller LLP on 01202 293226.