Protecting your Will against challenges

Making a Will and ensuring that it stays up to date is vital. It is often the case that family members will either be asked or volunteer to assist their elderly relatives in sorting out their affairs, so that everything is arranged according to their wishes.

However, where a Will is challenged, the involvement of a beneficiary in the Will making process can be seen by the courts as an attempt to exert pressure on an elderly, and possibly confused, relative.

Just such a scenario occurred last year (Williams & Ors v Mugadza & Ors – 2015)

The High Court was asked to consider the validity of a Will left by a 91 year old lady who had a history of dementia. Her condition had become progressively worse in recent years and this meant that she frequently suffered memory loss. Three months prior to her death, her grandson had booked and accompanied her to an appointment at a solicitors’ firm where she was said to have executed a Will which left all of her property to him.

Following the lady’s death, the Will was challenged on the grounds that the deceased did not have mental capacity. Attempts were made to contact the witnesses to the Will but no responses were received and the solicitors had no record beyond a diary entry of the appointment to make the Will.

The judge decided that it was likely the deceased had lacked capacity but even if this was not the case, the court’s suspicion was sufficiently aroused by the circumstances surrounding the making of the Will and it was ruled that the Will was invalid.

Lee McClellan a partner with Palmers’ Wills and Probate team, who deals with Will disputes on a regular basis, explained: “Challenges to a Will, particularly successful challenges, are far more likely with ‘home-made’ Wills and the involvement of a solicitor should help minimise the risk in this respect.

“Nevertheless, this case does serve to underline why it is so important to choose a solicitor who specialises in Wills and Probate work.

“It is quite understandable that relatives will often wish to assist older family members in making these arrangements, perhaps by contacting the solicitors to arrange the appointment, driving them to and from the meeting, etc.

“However, there is a danger that, by relatives being present throughout meetings with the solicitor, this increases the likelihood of a challenge being made – where others wish to dispute the terms of the Will – and of that challenge being successful.

“This is why a Wills and Probate specialist will always wish to see clients unaccompanied on at least one occasion, ensure that detailed records are kept which can assist in defeating any challenge to the terms of the Will and advise on what further steps might be taken in order to minimise the chances of a successful challenge. We are able to offer Wills and Estate Planning advice which will provide peace of mind for everyone involved. For more information please contact us.