Making a Will is supposed to make things easier for the people you leave behind. Unfortunately, some Wills are prepared in circumstances that almost invite questions and disputes later.
“My basic precaution is to ensure that no beneficiaries are involved in the Will instruction-taking process in any meaningful way. So be prepared to leave the room and preferably the premises! You are welcome to bring a client in, but close involvement in the discussions is just an invitation for a dispute to arise and potentially wreck the family as so many disputes do.“
That doesn’t necessarily mean the Will is invalid. But if you know that your family circumstances are complicated, or that somebody may be unhappy with your decisions, it makes sense to take extra care.
Don’t leave unexplained surprises
Problems are more likely where a Will does something that family members were not expecting.
Examples include:
- leaving substantially different amounts to children;
- excluding a close relative;
- benefiting one child considerably more than another;
- leaving money to a neighbour, carer, cleaner or somebody the family did not expect;
- making particular arrangements because one child is involved in a family business or farm.
You are perfectly entitled to make your own decisions about your estate.
But where the decision is unusual, an unexplained decision can create suspicion after your death.
Sometimes a proper written record of why you made the decision can be extremely valuable.
Don’t let somebody else take over the meeting
One of the biggest warning signs is where another person appears to be directing the process.
For example:
“Dad wants to change his Will.”
“Mum wants everything left to me.”
“He doesn’t really like talking about these things, so I’ll explain what he wants.”
That immediately makes me cautious.
Where appropriate, I need to hear from the person making the Will themselves.
If somebody who benefits from the proposed Will is constantly present, answers questions for the client or is unwilling to allow a private conversation, that can cause serious questions later.
Don’t wait until there is a crisis
Another common mistake is leaving a Will change until somebody is seriously ill, exhausted or in a care home and then saying:
“We need the new Will signed today.”
Sometimes urgent Wills genuinely are necessary.
But urgency makes careful Will preparation more difficult, particularly if there are already questions concerning health, memory or family disagreements.
Advanced age alone is not the issue. What matters is whether the person understands what they are doing and is making the decision freely.
Confusion, fluctuating memory, fatigue or distress can all mean extra care is needed.
Don’t keep changing your Will without good reason
People can change their Wills whenever they wish.
But several substantially different Wills made over a relatively short period can understandably cause questions after death.
Why did the person’s wishes keep changing?
Who was involved each time?
Was their health deteriorating?
Did somebody new become involved in their life?
Good records become particularly important in these circumstances.
Don’t treat signing as an afterthought
A perfectly sensible Will can still create difficulties if its signing is badly handled.
Unusual signing arrangements, questions over the independence of witnesses or hurried execution at home or in a care home can all become relevant if somebody later challenges what happened.
The circumstances surrounding the Will can therefore be almost as important as the words contained in it.
Don’t assume family problems will disappear
Blended families, second marriages, estranged children and long-running sibling disagreements are extremely common.
A Will cannot magically remove those tensions.
If anything, death and money can bring them to the surface.
Where you know that your decisions may be controversial, tell your Will writer. It may change how your instructions are taken and how carefully the circumstances are recorded.
A good Will is about more than the document
My job isn’t simply to type somebody’s wishes onto a piece of paper.
It is also to make sure that, as far as reasonably possible, those wishes are clearly understood, properly recorded and made by the person concerned without inappropriate influence.
Sometimes the most important question when making a Will isn’t:
“What would you like your Will to say?”
It is:
“Could somebody reasonably question how this Will came about after you have gone?”
If the answer might be yes, that’s the time to deal with the problem — not after your death.