For many Will drafters like myself as well as solicitors, legal disputes over Wills are becoming a more common occurrence. Intestacy (dying without a Will), poorly drafted Wills and inadequate planning are growing causes of family disputes, especially where step-families are involved.
However, the fact that the beneficiaries are only known once a Will is read can cause concerns, upsets and disputes. Even more so the fact that the distribution of assets is also only known at the time of the publishing of the Will.
The circumstances surrounding a Will can come as a worry and/or disappointment to beneficiaries who often enthusiastically accuse family members of undue influence and fraud. Capacity issues are also more common largely due to an ageing population, the rise in mental health issues, such as dementia and Alzheimer’s, and a greater awareness of mental health issues in general.
So although you’ll not be around when the proverbial hits the fan, do you really want to leave such an unpleasant legacy behind? If you know your Will could be an issue, why not talk to your beneficiaries about its contents. This way you can you circumvent the possibility of your Will being contested. Bear in mind what is called the M-Word – money. Nothing can be more divisive than the issue of money.
Where a serious dispute arises as to the validity of a Will, the knowledge of the person who wrote the Will makes them a material witness. This is why I ask so many questions when we first meet and why I ask you to sign a variety of documents in the process. In that way, I know that the contents of your Will will stand the test of time and that a successful contesting of your Will, unlikely. In such a situation I have a paperwork trail that shows that you had the mental capacity to write your Will and that the contents fully reflect your wishes.
Remember too that after your passing, your Will is published openly and is then in the public domain. Your Letter of Wishes, however is private and only available to the Executors of your Will, So if you have excluded someone from your Will, the reason for doing so should be contained in your Letter of Wishes and not in your Will.