What are the implications of leaving somebody out of your will?

Article by Chris Lucas

In England and Wales, we enjoy the right of testamentary freedom, which is the right to make a will and leave your estate to whomever you wish. 

There is however an important law to consider before you decide to write somebody out of your will. This is the Inheritance (Provision for Family and Dependants) Act 1975 which will apply if you die domiciled in England and Wales. This law will enable certain categories of people to bring a claim against your estate if you do not ‘reasonably provide’ for them in your will. 

A recent ruling hit the headlines just this week, whereby a woman who was cut out of her mother’s will successfully claimed £164,000 from the estate, despite the fact that the will left the whole estate worth £486,000 to animal charities and the deceased had clearly expressed previously that she did not want her daughter to receive a penny of her estate.

The persons eligible to bring a claim under the Inheritance Act are:
- Your spouse or civil partner
- Any person living in your household as your spouse or civil partner for a period of at least 2 years before your death (a cohabitee)
- Your children (including illegitimate and adopted children)
- Any person treated by you as a child of your marriage or civil partnership (this may include stepchildren)
- Any person financially maintained by you at the time of your death (there is a legal test to determine if somebody falls in this category, but it includes anyone who receives a substantial contribution in money or money’s worth from you towards their needs).

If somebody falls into one of the above categories, they will be eligible to bring a claim against your estate if they do not receive reasonable provision from your estate under the terms of your will.

What is meant by ‘reasonable provision’ will be for the court to decide based on the facts of the particular case and will often depend on what category the person bringing the claim (the applicant) falls in. If the applicant is a spouse or civil partner, they are likely to have a strong claim as the court will not have to take into account what is reasonable for their maintenance.

In all other cases, such as where the applicant is a child, if the person bringing the claim is in a strong financial position and independent in their own right, they are less likely to have a strong claim against the estate, although this will ultimately be a decision for the court to make. 

The court will have regard to any particular facts at the time of the court hearing, any changes in the positions of the beneficiaries and the applicant, and most importantly, any reasons stated by the person who made the will before their death. 

Therefore, if you are making a will and decide to leave somebody out of your will, whether that person is an estranged child or other relative, if the person falls into one of the categories listed above, it is strongly recommended that you make a separate statement with your will confirming that you are excluding them on purpose and explaining your reasons why. 

If you instruct Garden House to prepare your will and you choose to exclude somebody from your will, we will prepare a separate statement on your behalf at no extra charge. 

Whilst such a statement will not prevent an eligible applicant from bringing a claim against your estate, it will be strong evidence of your reasons which will be considered by the court before making any decision. 

If you need to update your will or have any concerns about excluding somebody from your will and them potentially bringing a claim against your estate, please feel free to telephone Chris Lucas on 01992 422 128 or email me at chris@ghslaw.co.uk. 

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 www.gardenhousesolicitors.co.uk

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Tel: 01992 422 128

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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.