Sensible steps to take to avoid a posthumous probate dispute

John Lambe
John Lambe

Published: July 24th, 2023

7 min read

The truth is that there is no way to extinguish the risk that an argument about your estate will arise after your death. However, there are some sensible steps that can be taken to minimise as far as possible the risk of a dispute arising.

Discussing Wills and probate with loved ones

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 to extinguish suspicions arising after your death that you did not have 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 are expecting to inherit which could motivate them to make a claim against your estate.

Making a Will

It is best to make a Will which sets out clearly what you want to happen to your estate after you die. It is sensible to appoint an experienced solicitor to both prepare your Will and to subsequently handle the execution of the Will.

Homemade Wills are much more susceptible to challenge because there is no independent evidence available to supports its 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 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 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.

  • 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.

  • 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, assist in demonstrating that you had capacity to make a Will and that you did so of your own free choice.

  • 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.

Tips to avoid Inheritance Act Claims

The most common probate claim is one made under the Inheritance (Provision for Family and Dependants) Act 1975 for an order that financial provision be made for a person who has either been excluded from the Will or considers that the provision made is unreasonable.

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 fool proof method of avoiding a claim under the Act, 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 provide 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 edge 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. Whether to use a no contest clause is therefore 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.

Registering and where to store your Will

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.

Does making a new Will cancel an old Will?

Regularly review your Will to make sure it is aligned with your wishes. 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.

Choosing the executors of your Will

Choose executors who are competent to perform their role, who are interested in doing so and who 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.

For further information please contact John Lambe

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