Why is it important to have a professionally drafted Will?
Liz Woodward | Wills & Probate Executive
When a solicitor takes your instructions to prepare your Will, even though you may not realise, they will be assessing your capacity to give those instructions.
There is always a risk that someone who considers they should have been provided for but were excluded may contest your Will, this could be a child of the deceased where the relationship has broken down, or someone who was financially supported by the deceased during their lifetime, or someone they have lived with as a married couple for two years or more.
In order to make your Will there a few elements that you must understand:
- That the prepared document you are signing is to deal with the distribution of your assets
- Know what assets you have, although not necessarily the values of those assets, for example you should know that you own your home, or that you have savings in a bank account, the fact that you are not aware of the value of your home or the amount held by the bank is irrelevant
- Know who you should be providing for, but that does not mean that you do have to include them in your Will
- You should not be suffering from any disorder of the mind that affects your thinking and decisions, this could be a mental disorder such as dementia or as a result of medication you are taking
A solicitor will go through all of the above when taking your instructions, they will establish whether there is any chance of a possible claim against your estate; for this reason it is especially important that you are totally honest with your solicitor and make sure they are fully aware of any potential risks, they can then take steps to put measures in place to protect your estate and ensure it is left how you want it.
Another form of protection is for you to write a statement to sit alongside your Will setting out the reasons behind your decision. It is important to remember any claim will be made after your death and you will not be here to defend your decision, by making a statement you are speaking from beyond the grave and this important document could help reduce the length and cost of a claim.
Any claim against an estate is distressing for all those concerned, it can take many months, if not years to settle and can be extremely costly, often running to thousands of pounds, this could significantly reduce the value of your estate and whether it is successful or not, it will delay the distribution of your estate.
If a claim is based on lack of capacity the onus will be on the person bringing the claim to prove this. A solicitor will prepare an attendance note when taking your instructions which will cover all of the above points, should a claim be made this document will provide valuable evidence that you understood and were capable of making your Will. Sometimes a solicitor may suggest that you have a professional capacity test carried out by your GP or someone who specialises in such tests, this is especially important where there has been a diagnosis of a mental disorder such as dementia. This report would be another form of valuable evidence to back up the decisions you made in your Will. There is usually a fee charged for a professional capacity test but this fee is insignificant in comparison to the cost of a claim and could possibly save your estate thousands of pounds.
If you would like more information or would like to discuss making your Will then please contact one our specialist Wills & Probate Team who will be happy to help, you can contact us by clicking here.
Alternatively you can call us on 0116 255 1811
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