Leaving Someone Out Of Your Will
Posted on 1st October 2021 at 12:54
When a loved one passes away, it can be a devastating time for friends and family. However, feelings of grief can soon turn to spite when they realise, they have been written out of a Will or not received as much inheritance as they expected to.
There are various reasons for leaving someone out of your Will which can include not having spoken to the person for some time, strained relations with a child, separation from a spouse or simply a child already being very wealthy themselves and not needing the inheritance. The truth is that there can be many reasons you may want to exclude someone from your Will.
Excluding someone from a Will can not only cause problems within the family but this is where inheritance disputes occur, and matters can become contentious.
Claims can be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.
Who Can Challenge a Will for Provision?
Although you can dispose of your estate on death as you wish, there are certain groups of people who could expect to receive something from your estate. As a result, certain relatives and dependents can claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that the distribution of the estate does not make reasonable financial provision for them.
The people who can make a claim are set out below: -
A spouse or civil partner
A former spouse or civil partner – they must not have married or registered a new civil partnership
A person who cohabited with you as husband and wife for 2 years prior to your date of death.
A child
A child treated as a child of the family (e.g., stepchild, children you are a guardian to)
A person maintained by you.
What are the Conditions for Bringing a Claim?
The death must have occurred whilst living in England and Wales
The application must be made within 6 months of the grant of probate being taken out
The applicant must fall within one of the 6 categories mentioned above of who can bring a claim under the Inheritance Act 1975
Your Will or intestacy must have failed to have made reasonable financial provision for the applicant.
In summary, if the beneficiary or applicant can prove that they were either financially dependent on you and an insufficient share of your estate or monies was left to them, or that they fall into one of the categories of family member and ‘reasonable provision’ has not been made for them, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
What Happens when a Will is Contested?
The Court will consider the following guidelines when considering a claim brought under the 1975 Act:
The financial needs and resources of the beneficiaries and applicants (if they are not a beneficiary)
Any obligations and responsibilities which you had towards any beneficiary or applicant
The size and nature of the net estate
Any mental or physical disability of the beneficiary or applicant
Any other matter which the Court may consider relevant
When considering claims brought by a spouse or civil partner, the Courts will consider the age of the applicant and duration of your marriage or civil partnership along with any financial and other contributions made by the application for the welfare of the family and any provision the application may have reasonably expected to receive in the event the marriage or civil partnership had ended.
The test when considering the standard of provision is “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
If the applicant is successful, then the Courts will decide what award should be made. Your Will remains valid, but the way assets are distributed will be varied by the Court to make provision for the applicant. This varies by case as what award is appropriate will depend on the circumstances of the applicant, the size of your estate, and what assets are available.
How can I ensure that my deliberate exclusion works?
Your Will writer will ensure you are of sound mind at the time of taking the instructions and that there are no concerns of undue influence.
It will be necessary to obtain the reasons for the exclusion and include this in a letter of wishes – it is best to include as much information as possible in the event the Will is ever contested as the Courts will seek to rely on the content in the letter of wishes.
It is important to note the advice of a risk of a claim under the 1975 Inheritance Act and ensure you understand this and your Will writer will ensure detailed notes are taken of the meeting along with the advice given – this is to protect you.
When writing the will itself, an exclusion clause will be included in the Will. This makes it abundantly clear that you intended to make the exclusion and that it was not an oversight.
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