What To Consider When Excluding Someone From Your Will

What To Consider When Excluding Someone From Your Will

Have you made a Will? If you have, is there anybody who might expect to get a share of your estate when you die who you have left out? Or, are you putting off making a Will because you are considering doing this? Well, either way you are certainly not alone as we see many clients in a similar situation.

Over recent years, there has been an interesting case making its way through the court system to those of you who are considering leaving someone out of your Will. Known as ‘Ilott v Blue Cross & Others’, the case has made it all the way to the highest court that we have, the Supreme Court, and focuses on the right of a person making a Will to have complete freedom to decide who should benefit from their estate.

You may not be aware that we live in one of very few countries where we can leave our property and money to whom we choose on our death. In many countries “forced heirship” means that there is no choice as to who is to benefit on death. Instead, the law dictates that a person’s estate is to pass down the family line and regardless of how a person may feel about their children or grandchildren, they can do nothing to prevent this. It might be said that we are lucky then as, when we make a Will, we can leave everything to the dogs and cats’ home if that is what we wish.

However, bear in mind that our testamentary freedom is qualified by statute. The Inheritance (Provision for Dependants) Act 1975 (“IPFDA”) allows a spouse or partner, ex-spouse or ex-partner, children or those maintained by a person at the time of their death to bring a claim for financial provision if they do not feel they have received enough either under the intestacy rules (where the deceased did not make a Will) or the Will. In ‘Ilott v Blue Cross & Others’, an adult daughter who had been estranged from her mother for 26 years, did successfully bring a claim for reasonable financial provision under the IPFDA when her mother died, leaving her estate to charities in her Will. Although the Supreme Court reversed the Court of Appeal’s decision to award the daughter, Mrs Ilott, even more money, she still received £50,000 from the first decision made by a District Judge in the High Court. Lady Hughes, in giving her judgment in the Supreme Court, was forthright in expressing her concern about the lack of clarity as to the application of the IPFDA and how the “reasonable financial provision” required by the legislation is to be decided upon.

It seems it is very difficult to look at this objectively and separate “reasonable financial provision” from whether the deceased acted reasonably and fairly in disinheriting a person.

The charities involved may feel comfort from the result as Mrs Ilott was hoping to get a larger share of the £486,000 estate but, if you are considering disinheriting a child or any other person who may be able to argue that you are maintaining them, then you would do well to ensure you consider the following:

  • Consider seeking professional advice when making your Will and ensure that you tell the professional who you are seeking to exclude from your Will and why.
  • Prepare a clear letter or statement explaining why your Will excludes a person. This is your voice after your death to show your reasons and can be very useful evidence.
  • Do not be surprised or alarmed if the professional assisting with making your Will recommends you have a capacity assessment carried out by a doctor. Again, this is useful to keep with your Will if any claim is brought after your death.
  • Be aware that, while testamentary freedom, on the face of it, may be a given in this country it continues to be qualified by the IPFDA and there is the danger that if you disinherit a person they may bring a claim which can be costly and, possibly ultimately, successful.

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