Excluding Someone from your Will

When a loved one passes away, this 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 someone not being provided for in a Will which can include not having spoken to the person for some time, strained relations with a child, separation from their husband or simply a child already being very wealthy themselves and not needing the inheritance. The truth is that there can be many reasons (both normal shall we say or slightly odd) for the testator wanting to exclude someone from their 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.

This article will focus on the claim which 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 everyone has testamentary freedom, meaning they can dispose of their estate on death as they wish, there are certain groups of people who would expect to receive something from the 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 classes of those 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 the deceased as husband and wife for 2 years prior to the deceased’s 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 the deceased.

What are the Conditions for Bringing a Claim?

 The following conditions must be met for there to be successful application under the Act which are:-

• The deceased must have died domiciled 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
• The deceased’s Will or intestacy must have failed to have made reasonable financial provision for the applicant.

In summary, if the beneficiary or applicant can evidence that they were either financially dependent on the deceased and an insufficient share of the 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 take into account 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 the deceased had towards any beneficiary or applicant
• The size and nature of the net estate of the deceased
• 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 the 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. The 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 the testator’s estate, and what assets are available.

Tips for Will Writers:-

• Ensure the testator is of sound mind at the time of taking the instructions
• Ensure there are no concerns of undue influence
• 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
• Advise the client of a risk of a claim under the 1975 Inheritance Act and ensure they understand this
• Ensure detailed notes are taken of the meeting along with the advice given – this is to protect you

When writing the will itself, ensure an exclusion clause is included in the Will. This makes it abundantly clear that the testator intended to make the exclusion and that it was not an oversight.

To speak to a member of The Society of Will Writers about making or updating a Will, visit our Find a Member page, or call the office on 01522 687888 and we will gladly put you in touch with someone in your area.