You cannot avoid estate litigation even if you feel you have the perfect Will. Every person has a right to contest the terms of a Will or Codicil, no matter how careful you are in drafting it. Whether that person will be successful is a different matter and the amount of legal fees expended will depend on what action you took in drafting your will, whilst alive, to minimise the risk of litigation.
If you anticipate your estate will be contested after you die, there are some factors you can take into consideration in an attempt to reduce the risk, and potential cost, of litigation for your estate:
Consider who you nominate as executor carefully. If you anticipate a relative will contest your estate, it may be worthwhile appointing an independent person to act as your executor. An executor who is emotionally invested in the estate, such as a spouse or child, can unintentionally cause legal fees to skyrocket as parties take sides, disagree for the sake of disagreeing and cause every issue to become contentious no matter how minor due to the erosion of trust.
Try to avoid general bequests if you know that it will merely cause a fight. For example, ‘I bequeath my jewellery to my children to be divided equally.’ If you have personal effects that you would like a person to receive, be specific. All too often, siblings end up fighting over the same personal effect as everyone claims they had been told it was being left to them. Alternatively, take photographs of the items you would like specific people to receive. Place the photographs (with your written instructions on the back) with your Will. Your instructions will not be binding but it will give your executor some guidance as to your wishes.
If possible, bequeath to your children (and step-children) equally. Disputes often arise because one child feels like they have been unfairly treated in favour of another sibling. If you are reducing someone’s share in your estate as you advanced them money during your lifetime, ensure you have a written acknowledgement of the advance that is placed with your Will and consideration should be given to making reference to any set-off in the terms of the Will. This can be used by the executor should the unhappy beneficiary suddenly claim that no such advance was made or that the advance was a gift.
If you are intentionally omitting a relative from your Will, or significantly reducing their share, try to avoid personal statements in your Will which attempt to explain your decision. Personal statements can incense the person on the receiving end of the omission or reduction and trigger litigation out of malice. Rather, in some circumstances it may be appropriate that any reasons for the omission or reduction be contained in a separate letter and kept with the Will for use by the executor if litigation is commenced. Be wary though, as any unreasonableness in your decision-making may be used against you. In this instance, it is best to be silent and provide no explanation at all.
Always provide instructions to your solicitor and sign your Will on your own. If you have relatives who wish to accompany you to the appointment, leave them in the reception area while you speak with the solicitor otherwise you are opening up allegations of undue influence by those relatives who came with you. Undue influence can potentially invalidate your Will if it is proven.
Finally, if you are getting older and feel that your relatives will claim you were not of sound mind when you signed your Will, take the time to obtain a letter from your General Practitioner to confirm your capacity. This letter can be kept with your Will and be used by your executor as evidence of your ability to make your Will when you did.
Unfortunately, there is no fool proof way of avoiding estate litigation. Minimisation of risk is the best strategy to adopt and there a variety of options and avenues available to a person in this regard.
If you are concerned about the prospect of your estate being litigated after you pass away, contact ABKJ Lawyers to discuss what options for minimisation of risk may be available to you.