How can I exclude someone from my Will? – A guide to disinheritance
A valid Will is the only way you can ensure that your money, property and assets go to the people or causes you truly want them to. It is a very personal and important document which allows you to dictate who is to inherit from your estate or more importantly who does not inherit after your day.
Although people are completely within their rights to exclude individuals and even family members from their Wills, care must be taken when disinheriting as this can have serious consequences for the estate.
A recent study conducted by JMW Solicitors surveyed 1000 UK adults on their views around contentious probate and Will disputes.
Within the study it was identified that 60% of those surveyed confirmed that they are likely to contest a Will if they feel they have been wrongfully excluded. Additionally, if their challenge was to progress to Court proceedings, 62% would continue to contest the Will even if this was costly, whilst 60% would still challenge the Will even if it meant going up against a friend or a relative.[1]
It is therefore vital, that you consider how to best approach this sensitive issue, in order to ensure the terms and wishes in your Will prevail.
Not everyone is entitled to challenge the contents of a Will. In England and Wales, the person making the challenge under the IPFDA 1975[2] must be either: –
- Your spouse, civil partner, or cohabiting partner;
- Your former spouse or civil partner, if neither remarried;
- Your children, step-children, foster children, and any child who was treated as yours;
- Anyone financially dependent on you;
- Anyone living with you for two years until your death.
Extended family members are not entitled to receive anything unless you do not leave a valid Will after your day – which is why it is vital to have an up-to-date Will in place which reflects your current wishes and feelings.
How to help prevent a challenge to your Will after disinheritance
Although it is not possible to prevent someone from challenging your Will, there are certain steps which can be taken to ensure any claims made have a lower chance of success such as:
1. Having an up-to-date valid Will
Having a well written, clear, concise and specific Will can ensure your wishes are recorded legally. A Will can be accompanied by a statement or a declaration naming and specifying the reasons for any individuals being disinherited and provide confirmation that the decision made was not accidental.
2. Include a “Letter of Wishes”
Although this document is not legally binding it is designed to provide further clarity on your decisions. It can be used to dictate specific funeral wishes not already contained in the Will or leave specific items to people of your choosing. This can assist your executors with the distribution of your estate.
3. Offer a token gift
To ensure certain individuals do not feel left out in your Will you can name them as a beneficiary to a gift of specific item or a small sum of money in your memory. Again, this may be enough to persuade an individual to not pursue a claim against the estate or to challenge the Will as they have not been completely ‘forgotten’ about.
4. No Contest Clause
It may be possible to add a provision in your Will which states that an individual only inherits if they do not contest the Will. Although this is not a guarantee or risk free, it is another option available to you which you can discuss with your solicitor during your initial meeting.
5. Medical Evidence
If it can be anticipated that an individual being disinherited may challenge the Will based on lack of mental capacity by the testator, it is possible to obtain a report from a doctor which confirms you were of “sound mind” when giving instructions and signing the Will.
This guide only briefly touched upon the challenges you may face when considering disinheriting an individual. It is vital that you seek professional legal advice in order to ensure that the best options for your particular circumstances are chosen and your Will written in a way which best reflects your wishes.
Article written by Mariya Dimitrova
