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At some point, you will need to consider writing up a will to settle your estate. This is something which can be very difficult for a lot of people, and it is easy to see why. In writing a will you are quantifying your entire life, while pre-empting your goodbye. Inevitably, these challenges can cause people to make mistakes, or worse, ignore the responsibility altogether. That is why it is important to know exactly how to avoid problems with wills.

In this blog from CWC Solicitors, we look at what issues you may face when writing a will and what you can do to get past them. We also speak with our Wills and probate expert, Lucy Atwill, to get the best advice possible for you.


What is a will?


While a will might seem like a complex legal document, it really is quite simple. A will outlines exactly your wishes for your estate when you pass away. The document ensures that your estate is handled appropriately, and to your satisfaction. Without a will your family and loved ones will face a difficult time fairly dividing what is yours, potentially causing further issues. 


The “Golden Rule” 


Drawing up a will is a complex business – it can be both emotionally draining and financially damaging to seek redress after someone has died. It’s important to avoid potential claims on an estate by ensuring a solicitor has carried out all the checks and balances needed to draw up a will.


One of the most common challenges to a will is the question of an individual’s capacity at the time it is written. Expert Lucy Atwill, who heads up the Wills and Probate department of Curtis Whiteford Crocker, says the “Golden Rule” must be followed to determine a client’s capacity to comprehend what they are doing.


“The first form of attack when challenging a will is to say that the person didn’t have the capacity at the time they did it so the ‘Golden Rule’ is there to ensure that you ascertain that they do,” says Lucy.


“If a family member rings up rather than the client, about a will, it will lead us to pose the question:  Does the client have the capacity to make a will, or are there just hearing issues on the phone? The family member could have a diagnosis and be in the early stages of dementia, attending the memory clinic or just be forgetful. In this scenario, it would often prompt us to ask the client or the family for a capacity assessment to be done to determine their capacity before we proceed.”


In addition to obtaining a capacity report, where relevant, we as legal professionals are trained to take contemporaneous notes of any discussions and to watch out for any unusual circumstances, such as leaving a child an unequal amount or to exclude them entirely, which could potentially lead to litigation, where the issue of the testator’s capacity and understanding when making the Will would be questioned. 


“In these circumstances, we may also consider what they have done in previous wills, and would ask questions about the background, so we have a true understanding of why they have reached this decision” says Lucy.


According to Lucy, she would “recommend that you consider making your Will early on, but if there are any issues surrounding capacity, or should your Will include any unusual provisions, be prepared that a Solicitor may request a capacity assessment to protect both you as the testator but also to avoid the risk of litigation in the future”.


If you have any concerns or questions about your estate, or writing a will, contact CWC Solicitors today to speak with a member of the team today. 


Photo Credit: Andrea Piacquadio

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