How to limit the risks of a contested estate following a death.

April 3, 2023

A contested estate is where claimants make a claim in the estate of the deceased as they feel the Will does not make reasonable financial provision for them or where there is a dispute relating to the validity of the Will.

A testator (person making a Will) can distribute their estate as they wish, and there is no burden for them to include family members in their Will. However, under the Inheritance (Provision for Families and Dependants) Act 1975 there are certain groups of people who can claim against the estate, including: spouses, former spouses, children, people treated as family members and people cohabiting with the deceased. If they believe they have not been provided for when they should have been, they are able to bring a claim under the estate.

Some of the ways in which you can limit the risks of a contested estate include declarations in your Will and executing a Letter of Wishes.

If there are certain people you do not wish to include in your Will, who might normally expect to receive a share of your estate, we may advise that you execute a separate side letter to be held with your Will and to explain that you have intentionally made no provision for them and the reasons behind your decision. Whilst this does not stop claims completely, it does help limit any potential claims, and the letter may be included as evidence that you had a reason to exclude a certain person.

Claimants in the estate may also dispute the validity of a Will, if it does not comply with the requirements of the Wills Act 1837. A valid Will must be in writing, signed and witnessed by at least 2 witnesses. Whilst there are different grounds for challenging a Will, the most common grounds are if the testator was under undue influence when executing or providing instructions for the Will, and if the testator lacked the requisite mental capacity and was not able to understand the Will or its contents. There are some ways to limit the risks of claims regarding the validity of Wills and these include meeting the solicitor alone, and obtaining a mental health capacity assessment.

If you come into the office with a family member for support, we always ask that they wait outside whilst you either discuss or re-confirm your instructions with one of our solicitors. This helps limit claims as it ensures that there is no undue influence from outside sources and that   you able to speak freely.

It can also be beneficial for elderly clients for those with fluctuating capacity to obtain a letter from your GP or medical practitioner, confirming that you have mental capacity at the time of making your Will.  If the Will is contested on the basis that you lacked mental capacity whilst making it, this can be used as evidence to the contrary.

These are just some of the ways to minimise the risks of a contested estate. Whilst they do not stop potential claimants,  they may be used as ways to defend or deter claims.  If you would like help making a Will or have concerns over your estate please contact our Wills and Probate Solicitors on 0121 705 7571 (Solihull Office) or 01564779393 (Dorridge Office).

Uzma Rasool
Trainee Solicitor – Wills and Probate Department

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.