Relationships change, people and families fall out or drift apart. Maybe one of your children is well-off enough in their own right and you’d rather your other children or grandchildren inherited from you instead. Whatever your reasons, you’ve decided that there is someone you would just rather not make provision for in your Will. This post will guide you through what you need to consider when excluding someone from inheriting.
In England & Wales we have always had a concept of testamentary freedom. This is your right to leave your estate to whoever you wish to. That said, there are certain people who might reasonably expect to inherit from your estate when you pass away. In fact, according to the Inheritance (Provision for Dependants) Act 1975 there are six categories of people who could expect provision to be made for them:
- Your spouse or civil partner
- Your former spouse or civil partner if they have not remarried
- Your partner if they have been living as though they were your spouse or civil partner for at least 2 years before your death
- Your children
- Those who you have treated as your own child – this includes stepchildren, your partner’s children, children you are a guardian to
- Someone who is being maintained by you. This could be a relative or friend who you are providing a regular allowance to for living costs, or letting live in your property rent free.
What happens if you don’t want to make provision for a person who fits into any of these categories? Well, when it gets to the probate stage and they discover the lack of provision they can potentially bring a claim against your estate and apply to the court for some provision. It would then be up to the Courts to decide if your Will failed to make reasonable provision for that person, and if so whether they should vary your estate to provide them with something. Such a claim must be brought within 6 months of the date your executors take out the grant of probate.
You should also bear in mind that a person can still bring a claim if some provision is made for them but they don’t consider the provision to be ‘reasonable’. What is reasonable will depend on your relationship with the person and the size of your estate. This means that there’s no avoiding a potential claim by simply making a cursory gift to someone you would rather exclude.
Thankfully there are steps that you can take that can temper a potential claimant’s success.
When preparing your Will, we will make sure that an ‘exclusion clause’ is included. This makes it very clear that your intention was to exclude the person in question and the lack of provision for them wasn’t just an oversight on your part.
We would also encourage you to write a Letter of Wishes to your executors making your reasons for the exclusion very clear. It’s always best to be as factual as possible rather than emotional, though we appreciate that it can be a very emotional thing. While the letter does have to be your own thoughts and wishes, Nene Legal can help you with drafting this.
