You have finally decided to write your Will. You have ensured you are aware of the legal requirements, you have chosen your executors and you have decided specific gifts and beneficiaries. You have written your Will in accordance with ‘best practice’.
Yet, now you find out that some of your family or friends may be able to contest and are likely to challenge your Will … contrary to your wishes! How can this happen?
It seems quite astonishing as it is your property to do with as you please. But other people, whom you have intentionally decided not to include in the distribution of your assets, believe that after you have passed away they have a right to claim the assets you have chosen not to give them.
They can make this claim under the Succession Act of 2006, that permits certain people, who are either related or who may have had a ‘relationship’ with you, to claim against your estate in certain circumstances.
If they are a current partner, former partner, child, or someone who was at all dependant on the person who has died, they may be entitled to make a claim if they were not included in the Will. There are other instances which give rise to a right to claim, for example, any carers or other persons who may have been living in a close relationship with the person who has died may be able to challenge their non-receipt of a portion of your estate.
You need to be aware of these potential claimants when you are writing your Will to ensure you adequately address the decisions you make to include or not include them.
How to address this problem in your Will …
There is nothing that you can write into your Will which will ever ‘guarantee’ or prevent someone from trying to challenge your Will after your death. However, being aware of the potential claimants and taking certain steps to make your wishes very clear may help ensure your estate and assets are distributed in accordance with your wishes.
If you are intentionally leaving someone who may have a right to claim out of your Will, or you believe there may be a strong likelihood that someone may contest your Will, you may want to consult a Will specialist. They should be able to assist you with drafting your Will so that your reasons for not making a provision for a particular family member are documented. This may help in providing concrete evidence against any potential challenge to your Will.
There are also things you can do yourself to ensure that any challenge to your Will is headed off before it becomes an issue. Often, writing a letter setting out the details of your decision and the reasons for leaving the family member or other person out of your Will is sufficient to avoid any dispute. This written confirmation from you also provides strong evidence that your decision was made with great thought and understanding and clarifies your wishes.
It may not prevent that person from challenging your Will, but it may go a long way to stopping them from being able to make a successful claim. The courts do try and uphold your wishes, as they recognize these are your possessions and assets. When you write your Will, and whether you do so yourself or use a solicitor, the further you go to ensuring your wishes are clear, the more likely the courts will uphold your Will and follow your wishes.