Everyone can say how they would wish to dispose of their estate upon death, this is known as having testamentary freedom.
That testamentary freedom also allows you to also decide who should not be provided for in your Will. There are multiple reasons why you may not wish to provide for someone, you may have simply lost touch over the years, not having spoken to the person, strained relations with a child, or simply your child is very wealthy themselves and not needing the inheritance, the list of reasons goes on and on.
Can my Will be challenged?
Yes! Following the introduction of the “Inheritance (Provision for Family and Dependants) Act 1975?” certain relatives and dependents can challenge your Will under the 1975 Act. The claim would go to court to increase the financial provision from a deceased person’s estate, claiming the Will failed to make “reasonable” provision for them. This could apply if you were “excluding” someone, or if they felt you had not left them sufficient amount from your estate.
The classes of those who can make a claim are:
- 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 to bring 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 be one of the 6 categories mentioned above under the “classes of those who can make 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
What will a Court take into account?
When the claim goes to court, a court will take into take into account the following when considering a claim under the Inheritance (Provision for Family and Dependants) Act 1975:
- 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
- The duration of the marriage or civil partnership
- Any financial and other contributions made by the application for the welfare of the family
- Any provision the application may have reasonably expected to receive in the event the marriage or civil partnership had ended.
So, can I exclude someone from my Will?
Yes, you can, but it may be challenged, and that challenge may be upheld by a court. If you are in any doubt, please take advice.
Talk to us to discuss your specific circumstances, and we can help you minimize the risk of firstly any challenge, and if there is a challenge, you having documentation prepared for the use of the court in advance to support your wishes in the Will being upheld.