Gary Rycroft: How to avoid a contested will

A will is a binding document, but with a surge in the number of disputes around people’s estates in recent years and escalating legal costs, it’s important that charities are aware of what they can do to help ensure their supporters’ final wishes are met.

As someone who draws up wills for a living, I’m always mindful of the likely reaction from a client’s family and friends when the content of their will becomes known. Admittedly, this is not just because of a desire to do ensure that clients’ wishes are upheld, but also out of a more selfish sense of self preservation. After all, who would want a document they have prepared being the subject of a post death challenge or the basis for a claim against the estate of the deceased client for lack of reasonable financial provision?

Why a rise in contested wills?

And yet, there are many reasons that why we’re seeing a rise in contested wills. Certainly, the increase in home ownership and the sheer value of even modest houses, mean that many more people now have estates worth fighting over and, with more complex family structures, there are often more people involved.

One of the biggest challenges of the ageing population is of course that we are seeing an increase in dementia. This can give scope for concern about issues such as capacity and undue influence with regard to the person making a Will. All of which means that the potential for challenging a legacy donation to charity is far greater than ever before.

And it is charities that are often at the sharp end of such disputes, as the duty they have to maximise any gift they receive for their charity beneficiaries, means they often have to roll their sleeves up and issue or defend a claim. All of which is potentially very expensive in terms of legal costs and time spent by employees of the charity itself, not to mention the risk to brand and reputation.

If a will is challenged, the first port of call is the will file and the contemporaneous record it provides of the awareness, personal circumstances, mental capacity and motivation of the person who made the will. As such, a meticulously prepared will file is invaluable and can sink a dispute case before costs escalate.

This means encouraging any legators to ensure that the file includes a record indicating why they wish to make a charitable gift and documenting their connection to the charity.

Challenges of will drafting

Given that the integrity and thoroughness of the will drafting process is of vital importance, a significant challenge is that the will drafting process is sometimes reduced to a cheap commodity. To protect legacy income, charities should therefore do all they can to encourage those making wills to use a solicitor who will do a thorough job and help build recognition by all concerned that a quick and cheap will may end up being a false economy.

Charities using and promoting simple will preparation schemes need to be particularly aware of the challenges here. Certainly, if charities are to receive any kind of gift in a will there clearly has to be a will in the first place, but quality wills are essential if disputes are to be avoided and legacy income sustained. Cheap wills are going to keep the Probate Litigation side of my legal practice busy, but will not best serve charities or supporters.

To mitigate the risk of being embroiled in a will dispute, the sector needs to understand the importance of the will making process, communicating this to supporters. This includes encouraging rigour and a thorough process with regard to the preparation of any will. After all, the reality of any post-death challenge is that costs can ratchet up very quickly, with all parties becoming locked into the dispute because of their unwillingness to write off costs incurred to date.

So the message is to value the will making process itself and encourage potential legators to get the expertise and advice they need from qualified and experienced legal experts to ensure their wishes are carried out. Bearing in mind the immense importance of legacy income to so many charities and beneficiaries alike, it’s worth doing all you can to protect and preserve supporters’ final wishes.