Can I exclude someone from my Will?

Can I deliberately exclude someone from my Will? Can I leave my child out of my Will? How do I disinherit someone in my Will?

This article outlines how you can deliberately exclude someone from your Will.

There are a number of reasons why you may wish to disinherit or deliberately exclude someone from your Will.

It could be due to:

•  a change in marital status (such as a divorce);

•  estrangement from that person;

•  a lack of need (or increased need elsewhere) for inheritance (for instance, you may wish to disinherit one child to benefit another because the latter needs more support)

•  the conduct of the individual (for example, they have proven themselves to be financially irresponsible and you have concerns over their use of inheritance);

•  having already provided the individual with enough support or gifts whilst alive.

Regardless of the reason, whilst it may be a difficult decision to come to, the process of disinheriting someone from your Will is not as complicated as you may originally think it to be.

However, it is important to understand the options available and their possible consequences.

This article outlines the options available to you to disinherit or deliberately exclude someone from your Will and the effects to consider so you can come to a more informed decision.

How can I remove or disinherit someone from my Will?

•  How do I deliberately exclude someone from my Will?

•  What is the relevance of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act 1975”)?

•  How can I remove or disinherit someone from my Will?

You may have already written your Will and now wish to update it by removing someone you previously wished to benefit.

If so, please read our article on how to amend or update your Will to achieve this outcome.

What is the relevance of the Inheritance Act 1975?

The Inheritance Act 1975 allows certain categories of people to bring a claim against the estate of a deceased person where ‘reasonable financial provision’ has not been made for them under that person’s Will or the intestacy rules.

On one hand, the Inheritance Act 1975 is a useful means of attempting to achieve a fairer outcome for certain people in the instance that there is no valid Will or because of the restrictive and rigid nature of the intestacy rules.

However, for those looking to deliberately exclude someone from their Will, the Inheritance Act 1975 poses a threat in re-writing your Will against your wishes.

Please read out article on who can claim under the Inheritance Act 1975 and how such claims are treated for a better understanding to effectively exclude someone from your Will.

How do I deliberately exclude someone from my Will?

The possible options include:

Making your Will in such a way that it simply does not make any provision for the person in question.

This is the most precarious of options.

It leaves it open for the court to make a decision as it sees fit with no effective protective measures in place to guard your estate or your wishes.

Making some limited provision for the person you wish to exclude.

This may prima facie appear to defeat the point as you don’t want the person to receive anything from your Will.

However, given the operation of the Inheritance Act 1975, this limited provision is made with the intention that it may defer the recipient from making a claim which could entitle them to much more.

Making some limited provision for the person you wish to include but with a proviso that should they seek to challenge the size of this provision, the legacy will fail.

This is made with the intention of leading the person to consider the merits of attempting to gain more at the risk of losing everything.

However, whilst such a proviso is valid, there is case law precedence which suggests that the risk of losing his legacy may make his claim under the Inheritance Act 1975 a stronger one (Nathan v Leonard [2002]).

Making your Will, excluding the person or providing limited provision, together with a statement outlining your reasons for doing so.

Whilst this statement would be admissible evidence of fact for the court to consider in any Inheritance Act 1975 claim, it is not directly relevant to the question of whether or not the provision was reasonable and such evidence has in some cases been rejected by the court.

If you do wish to write such a statement of reasons, it is best to do so outside of the Will given the public nature of the Will itself.

Providing evidence of charitable donations in your lifetime and/or work for the charity.

This is only relevant where you wish to exclude someone from your Will and wish to benefit charities (or any third party) instead.

The evidence would assist in showing that the gifts in your Will were not unreasonable.

The takeaway

There are a number of personal reasons why you may wish to disinherit or exclude someone from your Will.

Whilst it may not be complicated as originally thought, there are a number of ways of achieving this, all depending on your personal preferences.

In most cases, the most commonly chosen is a ‘no contest’ clause in the Will (stating the person you wish to disinherit or exclude) and a letter of wishes stating the reasons for disinheritance or exclusion.

However, whilst these are valid, there is still nothing stopping the disinherited or excluded person from bringing a claim against your estate under the Inheritance Act 1975, provided they fall within one of the classes of potential applicants.

This may come as a frustrating revelation given the Inheritance Act 1975 threatens to rewrite your Will and benefit those you deliberately excluded.

If you would like to disinherit or deliberately exclude someone from your Will, then please contact Edward on 07368 526296 or edward@adewills.co.uk to get started and finished on leaving your legacy your way.

 

Legal Insight / How To

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