DRAFTING YOUR WILL TO AVOID LEGAL CHALLENGE

The drafting of a Will is an extremely important and professional service offered by your solicitor and should not be tarnished or underestimated by those offering ‘DIY’ packs online.  A poorly drafted Will or indeed a failure to make one can lead to a Testators greatest fear ‘a family dispute.’  A properly drafted Will should be clear, accurate and provide an efficient method to deliver property to beneficiaries.  A skilled draftsman will be required to take extensive instructions to avoid many of the pitfalls that arise from the ever changing law and tax environment.

Unfortunately only too often Wills are challenged by financially and emotionally draining litigation.  Some of the most common issues that arise are:

1. The Testator did not properly execute the Will –  S.9 of the Wills Act 1837 govern the execution of the Will.  Any breach could lead to a successful challenge.  In short the Will must be signed by the Testator and in the presence of two witnesses.
2. The Testator lacked testamentary capacity to make a Will – If at all possible and when reasonable the ‘Golden Rule’ to obtain a medical practitioner’s assessment of the Testator’s capacity should be followed to fend off dispute after death by aggrieved family members.
3. The Testator did not know or approve the contents of the Will – Instructions should be taken from the Testator and the Will read over before execution.  Additionally perhaps obviously the Will should not contain a benefit for the draftsman.
4. The Testator was acting under undue influence when the Will was made – A draftsman should always see the Testator alone when taking instructions and executing the Will.
5. Claims under the Inheritance (Provision for Family Dependants) (Northern Ireland Order) 1979 – The Testator should consider making reasonable financial provision where required for any of the following: spouse, civil partner, former spouse, civil partner, cohabitee living as husband and wife for previous 2 years, child, a person treated as a child after marriage or person maintained by them or expect a claim.
6. Mutual Wills – Where two Wills are executed by two parties under the agreement that they are not to be revoked or altered once one party has died.  The agreement must be clear and the best place to set this out is in the Will.  They are in truth best avoided as they do no permit for changes in circumstances in the future, do not prevent the Testator from disposing of property during his lifetime and often lead to litigation to enforce.
7. Proprietary Estoppel – Where the Testator has promised someone an interest in a property and upon reliance on that promise they act to their detriment the law provides a remedy to  make good the detriment suffered.  Any Testator must be acutely aware of such recourse if unwisely choosing to discuss the contents of their Will with others.

The above are only a snapshot of the pitfalls that could lie ahead of an unwary Testator.  The case law relating to same is extensive however the purpose of this article is not to discuss the intricacies of the law relating to each but rather to highlight the need for the Testator to be conscious and professionally informed regarding same.

Your Will should be reviewed regularly in particularly in light of changes in circumstances such as marriage, civil partnership, death, births, adoption, purchasing property, emigrating or a change in law such as inheritance tax legislation.

To make a new Will and discuss any of these matters please make contact by any means below.