Who can you cut out of your Will?

On behalf of Attwaters Jameson Hill posted on Wednesday, October 4th, 2017

Family dynamics are never simple, and family members can and do fall out badly. This can sometimes go as far as disinheriting someone, and cutting off their entitlement to a share in the estate.

Whilst in theory you have the freedom to leave your assets to whoever you like, if you fail to leave provision for certain people in your Will, they could challenge it and get the terms overturned.

The law expects you to make ‘reasonable financial provision’ for the following people:

  • Your spouse or civil partner
  • Your former spouse or civil partner, provided they haven’t remarried or entered into a new civil partnership
  • Any person living with you as husband or wife, cohabiter or civil partner, for two years immediately prior to your death
  • Your children (especially minors), including illegitimate and adopted children
  • Anyone who was treated as a child of the family, including stepchildren, or a partner’s adopted child
  • Anyone who was maintained wholly or partly by you at the time of your death.

If you choose to make no provision or leave them only a small amount, they may be able to claim against your estate under the Inheritance Act, 1975. Whilst you cannot prevent someone who falls within one of these categories from making a claim, you can reduce the likelihood of this happening.
 

Making your position clear

If you do decide to leave someone out of your Will, you should think very carefully about your decision, and it’s advisable to let them know by letter or at a meeting with them the reasons why you’ve taken this step. A copy of this document should be kept with your Will. It’s important to note that the reasons for excluding them should be fair, reasonable and rational; otherwise your executors could be faced with a challenge which might end in a court case.

Common reasons for disinheritance include lack of relationship or contact with the heir, the testator’s belief that they have sufficient financial resources, the fact that financial provision has already been made. If disinheritance appears to be down to the testator having forgotten to update their Will, or accidentally omitting an heir, then the Will could also be contested.
 

Gifts to charities

In the case of Ilott v Mitson, Melita Jackson, who died in 2004, left nothing to her estranged daughter Heather Ilott, instead choosing to benefit three charities. When the Will was challenged under the terms of the Inheritance Act, 1975 as being unreasonable, a settlement of £50,000 was initially made to Mrs Ilott by a district judge.

Mrs Ilott appealed against this judgement and the Court of Appeal ruled in 2015 that the daughter should be awarded £164,000 to purchase her housing association home, plus £20,000 to supplement her state benefits. However, in March this year the three charities who were named as beneficiaries under the Will appealed, and as a result the 2015 settlement was overturned and the original award of £50,000 was restored.
 

Challenges for financial provision

The judgement means that testators can choose to ignore their adult children when making their Will, but claims made by a former spouse, child or dependant, for financial provision made under the Inheritance Act, 1975 may still succeed.

If a challenge is made for reasonable financial provision, then the court will review the claim and decide whether provision should be made. In other words, even if the testator made their wishes clear in their Will, the court can still, in some instances, decide to override them.

Making your Will is a vitally important step; so too is ensuring that you make your intentions clear and that they are supported, where necessary, with additional documents such as a Letter of Wishes.

 

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