How Can I Stop My Will From Causing Arguments When I'm Gone?


Modern trends in family life are likely to bring about an increase in contentious probate, the area of law that deals with disputes about wills, probate, and inheritance. Rising trends which deviate from the traditional (and often impractical) expectation that you will marry once, have children and never divorce could leave some in a difficult situation.

Wills and Probate

What Could Happen?

If you're unmarried, but in a happy, cohabiting relationship, with children, there may be problems on the death of either partner. This is especially true when there isn't a will. This type of relationship doesn't provide much security for the surviving partner, since the rules governing the condition of their estate (intestacy) will ignore them. These circumstances highlight the importance of making a will.

If however you are left with nothing after the death of a loved one because of the intestacy rules, and you can reasonably expect to have been provided for, you can make a claim against the estate.

If you've previously been married, and had children in that marriage, there is also a greater degree of complexity compared to people who have only been married once. When you're divorced the effect on your existing will is that the divorced spouse is written out of it as if they died before you. This means a former spouse does not automatically inherit.

However, there are circumstances where they might be able to claim, such as:

  • If the former spouse didn't remarry
  • If there was only a separation, rather than a divorce

Question of Capacity

The increase in people suffering from dementia also increases the numbers of disputes over a family estate. Dementia causes problems with the validity of a will because it raises the question of whether they had the capacity to make the will at all.

Someone has the capacity to make a will if they:

  • Understand the nature of a will and the effects it will have
  • Understand what they're giving away in the will
  • Understand who may expect to inherit and show that they've considered this
  • Have no mental disorder, which could affect their ability to make a will.

If there are any doubts about capacity, a statement of capacity will need to be obtained either from a solicitor, a medically qualified person, or a long standing family friend with nothing to gain from the estate.

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