In England and Wales, you have testamentary freedom, meaning you do not have to leave your estate to your spouse or your children in your Will. You can leave your estate to whoever you would like.
However, your family members can make a claim against your estate after you have died. The burden would be on the family member to prove their claim, which could lead to potential costs arising from your estate to deal with the claim. A successful award could include several options, such as an absolute capital sum or an income for the successful claimant.
It is, therefore, beneficial to consider the following factors before you make a Will which excludes your family members:
You and your spouse may have kept your finances separately and would prefer to leave your estate to your children directly rather than to your spouse, which could be particularly relevant if you have children from a previous relationship.
You should be aware of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), which provides that your spouse can bring a claim against your estate. The court would consider what is reasonable for your spouse to receive. The Act applies to a spouse, civil partner, some former spouses, and civil partners.
The amount of financial provision will depend on the circumstances.
If you are estranged from your adult able-bodied child, it is tempting to think they will not be able to bring a claim against your estate as they are not financially dependent on you, and you may not have had contact with them for some time. However, the court in the case of Illott v Mitson has shown that an adult child can bring a claim under the 1975 Act.
The court will consider several factors, such as the size of your estate, your relationship with your adult child and your child's needs when they make their decision.
Someone is who not your biological child may also claim that you have treated them as your child.
In comparison to when a spouse brings a claim, the potential award is limited to what would be reasonable for your child to receive for their maintenance. Although there is no legal definition for "maintenance", this could be what would be reasonable for your child to live on.
Depending on your circumstances, it may be beneficial to discuss your intentions for your Will with your family members who will be affected.
A discussion may help them to understand your reasoning, and it will be less of a shock for them when you have died and the contents of your Will come to light, which could reduce the likelihood of them bringing a claim.
You may wish to leave a legacy in your Will for your family member, which is a monetary gift rather than a share of your estate. You can also include a forfeiture clause which states that if this beneficiary contested your Will, they would lose the benefit of the legacy made to them under your Will.
A forfeiture could discourage your family member from claiming your estate as there is a risk that they could lose the legacy in your Will and be unsuccessful in their claim. It is important to be aware that there is no guarantee that the court will enforce this clause, but it is helpful to show your intentions.
When you make your Will, you can make a separate statement explaining your reasoning for excluding a particular family member or leaving them a smaller share of your estate. Although the letter does not necessarily mean that the claim would fail, it helps to show the reasoning behind your decision and could discourage your family member from bringing a claim. There may be several reasons as to why you are excluding someone from your Will, such as a breakdown in your relationship and estrangement.
This letter should be separate from your Will so that it remains confidential after you have died. Your Executors can decide if they wish to disclose the letter if a claim is brought.
If you would like our assistance in making a Will or reviewing your current Will and discussing the potential claims against your estate, please get in touch with a member of the Wills, Trusts, and Probate Team at:
