Sensible steps include making a will early and updating it regularly, taking as much time and advice as needed, and discussing intentions not only with loved ones, but also with professional advisers.
Clear evidence that the testator understood and intended to sign their will is important to defeat or even avoid disputes. Clear records of conversations with the testator and their replies, in their own words if possible, are needed. If there is any concern about an ageing or unwell testator’s mental capacity, the golden rule is to obtain the opinion of a suitably qualified doctor (usually a geriatric psychiatrist).
In a high-value case consider recording the testator on video discussing their will and signing it. Provided the video is clear and covers the entire room, a recording can be the clearest evidence that the testator knew what they were doing.
Finally, be careful about who is chosen as an executor. A dishonest or incompetent executor can cause real damage and serious loss to the estate. So the testator needs to make sure that they choose someone trustworthy, competent and experienced – and if necessary pair a trusted friend or family member with a professional lawyer or accountant.
Think carefully before getting involved
If a will dispute arises, the first question is whether to become involved at all.
Will disputes are usually extremely emotive and unclear, and can cause significant financial cost and distress. Once a dispute has started, it can be very difficult for a person to untangle themselves from it. In the case of an executor or administrator, once they have begun to act there may be no route out at all – only an order of the court can release them – and so it is even more important to consider at the outset whether to become involved.
Consider who are the real parties to the dispute. If the dispute is over how much each beneficiary should receive, the executor may be able to remain neutral and leave the beneficiaries to resolve the dispute between themselves. On the other hand, if a third party is trying to remove assets from the estate, that is likely to be a dispute for the executor and not for the beneficiaries.
It is important to consider these issues at the outset. If a person becomes involved and the court considers that they should not have done so or have behaved poorly during the dispute, it may not allow them to recover their costs even if they win, or executors might have to pay costs out of their own pocket.
Gather evidence early
It is important to collect evidence early. Memories fade quickly, especially if the deceased’s friends and relatives are themselves elderly. Documents can be lost when the deceased stops paying for online storage or when passwords are forgotten.
