Disinheriting family and dependants

It's sometimes thought that you can use a Will to disinherit people, or prevent them from benefitting fully from your estate. Well, that’s true – but only up to a point.

The general rule in the UK is that you have freedom to write your Will however you wish, leaving your estate to anyone you choose. But in fact, close family members and dependants may be able to make a claim against your estate if they have not been adequately provided for. An Act passed in 1975 made it much more difficult for people to cut their family members out of the inheritance.

This is the case not just if your Will doesn’t mention someone, but even if it explicitly states that a particular person is not to benefit.

Provision for family and dependants

The law expects that a testator will generally make provision for their close family to benefit from their estate. This extends to:

  • the testator’s husband, wife or civil partner;

  • the testator’s ex-husband, ex-wife or ex-civil partner, in certain circumstances;

  • a cohabiting partner of the testator, if there was no marriage or civil partnership;

  • the testator’s own children; and

  • other children that the testator had some parental role towards (which, depending on the circumstances, can include stepchildren).

In addition, if you are responsible for maintaining some other person, that person might also have an expectation and claim to be provided for out of your estate.

The right is not automatic – it has to be established by a claim being brought and the court awarding provision from the estate for the person claiming.

So if your Will does not provide for such people, then in effect it may have to be altered by the court, and the original terms of your Will cannot be followed.

If you are getting divorced, there is nothing to stop you from making a Will which makes no provision for your spouse or civil partner. But if the divorce doesn't go through, for whatever reason, your spouse or civil partner could potentially make a claim against your estate.

There's no requirement to make a new Will if you get divorced (unlike when you get married), but when you receive decree absolute (i.e. when the divorce is final), any parts of an existing Will that refer to your former spouse or civil partner will be revoked.

Leaving insufficient provision

Exactly what is meant by 'insufficient provision' will depend on your precise circumstances, and the history of your relationship with the person making the claim. It may depend on the expectations as to the provision you would make (for example, it would not be "reasonable provision" for funds to be given for educating children privately, if there had been no expectation that the children would be privately educated.)

Provision does not necessarily need to be financial. For example, it may be allowing your spouse or cohabiting partner (or a dependant) to remain living in your house for the rest of their life, perhaps because it would be distressing or stressful for them to be forced to move out, even if it then passes to other beneficiaries on their death.

If you are concerned about whether you are making insufficient provision, there are two stages you should consider.

Be aware of who can make a claim

If you are making any regular payments to anyone – for example to a niece, nephew, mother-in-law, elderly relative or former employee – you may wish to consider obtaining specialist legal advice. If you provide details to your solicitor, they will be able to suggest whether you should consider making provision for them in your Will.

If you are concerned that someone will challenge your Will, it is important to get legal advice. For example, they may recommend you have a medical professional at the signing of the Will to reduce the possibility of a successful challenge.

Any challenge that is made can be contested by your Executors, but if it is successful any legal costs will be paid from your estate – reducing the amount that can go to your beneficiaries. Taking precautions in advance can help to avoid unnecessary costs.

Consider making provision other than in your Will

There are several ways you can make sufficient provision for someone without including them in your Will. For example, you may wish to consider setting aside a lump sum, or arranging a life insurance policy to come into effect on your death rather than leaving provision in your Will.

If you plan to cease making provision on your death, you could write a letter advising the person of this and explaining why, or arrange a meeting with them. You could also leave a note with your Will stating why payments are to cease, and attach the letter you sent or note of your meeting.

You can also make sure that you give anyone who is financially dependent on you adequate support during your lifetime. Lifetime gifts will be taken into account by the court in the event of a challenge, and they may decide that any obligation you had to the person challenging your estate has been fulfilled by support during your life.

Once again, if this is your intention it is important to discuss your plan with the people involved, and possibly to include your decision in a formal statement known as an Inheritance Act Statement or Declaration.

Limiting the beneficiaries

If you truly wish to exclude such a person from benefitting from the estate, then:

  • your Will should be explicit about that fact; and

  • you should also formally record your reasons clearly and fully.

You can formally record your reasons for excluding a person from benefitting from your estate in a letter of wishes, or by making an Inheritance Act Statement or Declaration alongside your Will.

Your reasons must be strong enough to persuade the court that provision for that person should not be made out of your estate. If you have decided to benefit some other person instead, or perhaps a charity, you would need to show good reason (for example a history of supporting the charity) to explain choosing that person or body.

For more information on when a letter of wishes can be used.

But even if your Will is explicit and good reasons are given, the court still has power to order that a family member or dependant is entitled to a share in your estate.

So there is no way of avoiding a potential claim from someone whom you wished to exclude. And because of that risk, you should seek specialist professional advice if you wish to exclude such a person from your Will.

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