Sensible Steps to Take to Avoid a Posthumous Probate Dispute

The truth remains: no Will is entirely immune from challenge. Even with the clearest intentions, disputes often arise, fuelled by grief, complexity, or suspicion. But in today’s market, where more consumers are turning to DIY Wills, partial legal support, or online templates, the risk of probate disputes is rising, especially when key safeguards are missed.

The recent IRN Legal Report highlighted that 40% of people believe all Will Writers are regulated, but many are not. The difference between a qualified solicitor and an unregulated Will Writer is not just a legal technicality, it’s your family’s future at stake.

As Contentious Probate solicitors, we see firsthand how improper planning or low-cost shortcuts can lead to expensive, emotionally charged litigation between loved ones. The good news? There are still practical, proven steps that can significantly reduce the chances of a claim against your estate.

Communication

Managing the expectations of family members is a very good idea. It is best to be open about what you want to happen to your estate after you die. That way, there are no surprises when you are gone, and you will have an opportunity to explain why you have made the choices you have made. Equally, this approach can help extinguish suspicions arising after your death that you did not have the capacity to make the Will or that the Will was procured by means of undue influence.

It is imperative that you do not make promises that don’t then find their way into your Will. This could lead to resentment amongst those who expect to inherit which could motivate them to claim your estate.

Preparation of the Will

According to recent IRN research, only 49% of consumers now use a solicitor to make their Will, down from 56% just five years ago. The appeal of quick, cheap DIY options is understandable. But from a litigation perspective, homemade Wills are among the easiest to challenge.

Homemade Wills are much more susceptible to challenge because there is no independent evidence available to support their validity. A solicitor will keep an eye out for possible red flags that indicate financial abuse of a vulnerable adult by persons who exert pressure on them to change their Will.  Even when financial abuse is not an issue, a solicitor can add a lot of value when it comes to taking steps to minimise the risk of a dispute about your estate after you die as follows:

(a)    A solicitor can help to remove doubts about the validity of your Will by ensuring you have capacity to make a Will and are free from any undue influence when you did so.

The solicitor can ask your GP to confirm you have the capacity to make a Will and to witness the execution of the Will.  Alternatively, a solicitor can arrange for your capacity to be assessed by a qualified person.

(b)    It is best for a solicitor to take instructions from you on your own to ensure that no pressure is applied to you about the contents of your Will and that the instructions you provide are your own.

(c)     The solicitor can make detailed notes recording your instructions, the reasons for the choices made by you, and any advice that you were given about the contents of your Will, including advice about the implications of excluding someone from your Will.

The solicitor’s note should explain any changes you want to make to your previous Will.  This could extend to the preparation of a letter of wishes by you which provides your explanation for the contents of your Will.

It is also sensible for the solicitor to ask you to complete and sign a questionnaire about your estate and what you want to happen to it after you die and/or to video their meeting with you in which you provide them with your instructions.  This can help to avoid disputes about whether your Will says what you wanted it to and assist in demonstrating that you had the capacity to make a Will and that you did so of your own free choice.

(d)    The solicitor can also make sure that the Will is executed in compliance with the legal formalities which, if not handled properly, will result in the Will being declared invalid.

The Inheritance (Provision for Family and Dependants) Act 1975

Under the Inheritance (Provision for Family and Dependants) Act 1975, anyone who feels they are financially dependent on you may challenge your Will, even if you excluded them on purpose.

It is often sensible to include a small gift in your Will for a person you were thinking about excluding from your Will. This is not a foolproof method of avoiding a claim, but it could make it more difficult for a person to argue that your Will has failed to make reasonable financial provision for them.

It is a useful approach and disincentivises anyone who might otherwise want to bring a claim, particularly when combined with a no-contest clause in your Will. Such a clause states that someone who brings a claim must forfeit the inheritance given to them by your Will. It will take effect whether a claim under the Act for financial provision succeeds or fails. The risk to a beneficiary who brings a claim is that they will be left with nothing if their claim under the Act fails. An extra disincentive is to ensure that the interests of other beneficiaries will also be forfeited.

However, a no-contest clause will not be a deterrent if a person has a strong claim against your estate, whose value exceeds the provision that is made for that person in your Will. Further, such a clause can be a double-edged sword because the court, when considering a claim for financial provision under the Act, can consider the provision that has been forfeited when considering whether reasonable financial provision has been made. Therefore, whether to use a no-contest clause is fact-sensitive, and advice should be taken from an experienced lawyer before doing so.

It is also sensible to record your reasons for the limited provision or lack of provision made for the disappointed beneficiary.  The court can take these reasons into account when deciding whether to make an award of financial provision.

Register and store your Will

It’s not enough to make a Will, you need to store it securely and review it regularly. We’ve seen disputes arise simply because an outdated Will surfaced after a newer one was lost or forgotten.

You can register your Will on the National Wills Register. This ensures that your executors and beneficiaries can find your Will by completing a search online after your death. This will prove that your Will is valid by showing its most recent iteration.

The best place to physically store your Will is with a solicitor. This will protect it from damage, loss and keep it easily traceable.

Updating and Revocation

Regularly review your Will to make sure it is aligned with your wishes, especially with major life events such as marriage, divorce, children, or the death of a beneficiary. It is standard practice for a new Will to make clear that it revokes previous Wills, but it is best practice to destroy or deface any physical copies of previous Wills. This ensures that there is no confusion about your wishes.

Remember that if you marry, that will automatically revoke your Will if it was made prior to the marriage. Accordingly, you should revisit your Will after the marriage to make sure that it passes your estate to those persons you wish to inherit. We’ve seen disputes arise simply because an outdated Will surfaced after a newer one was lost or forgotten.

Executors

Choose executors who are competent to perform their role, are interested in doing so, and can work together. A failure to do so can result in a dispute about how the Estate is being administered and may lead to an action to remove one or more executors.

Planning for the Future with Confidence

Our Private Client team can assist you with the preparation of a Will, ensuring your wishes are clearly documented and legally sound. We provide tailored advice to help you protect your assets and provide for your loved ones with confidence.

How Can Forbes Help You

With our deep understanding of the legal complexities surrounding contested wills, we are well-equipped to assist you in navigating will disputes. Our expertise includes addressing concerns about testamentary capacity and undue influence, and ensuring timely, comprehensive responses to legal queries. Whether you are an executor, beneficiary, or legal professional, we can provide strategic guidance to protect your interests and help resolve contentious probate matters efficiently. For more information or to discuss your case, contact our Contentious Probate and Trusts division.