Will distribution

Disinheritance – can you cut someone out of your Will?

People are starting to understand that making a will is an important life decision and could save your relatives a great deal of heartache once you’ve gone. You can designate who gets what, express your wishes, and that’s the end of it.

Or is it?

Why the rise in challenges to wills?

The number of disputed Wills has shot up in the last couple of years, with the last Will and Testament of the deceased being openly challenged in the courts. Disputes over Wills can last for years, while fees eat into the inheritance of those contesting who gets what.

Much of the increase in inheritance disputes has (rightly or wrongly) been put at the door of what is termed ‘blended families’ – those units where spouses are on their second marriage and bring with them children from a previous marriage or partnership. The fact that step-children are often factored into a Will can cause conflict between blood relatives and those who are part of the family unit through marriage.

The number of Wills disputed in the courts may just be the tip of the iceberg. It’s thought that far more are settled before the dispute reaches the courts. So, what are your rights if you decide to leave someone out of your Will, and can you ensure your last wishes are not challenged after you’re gone? Anthony Kalp, Associate Solicitor with Berry & Lamberts’ Private Client team explains.

The Inheritance (Provision for Family and Dependants) Act 1975

Many people believe that their Will is written in stone and cannot be altered by others, but this is not the case. If your nearest and dearest (spouse, civil partner, former spouse or civil partner who has not remarried, children, dependant or unmarried partner) feel that your Will does not make reasonable financial provision for them, then they may be able to challenge it. However, because ‘reasonable’ financial provision is such a vague term, it is open to interpretation and, therefore, dispute.

If a person challenges your Will under this Act, then the courts will look at a number of factors, such as the financial situation of the claimant, and the needs of the beneficiaries named in the Will. It is an area filled with so many shades of grey, it can be almost impossible to navigate a clear path through, and someone, somewhere, may end up disappointed.

If a claim is made after your death, then a compromise may be agreed between the claimant and the other beneficiaries instead of going to court.

An example: The Ilott case

It is a sad fact of life, but sometimes relationships between parents and children break down, in some cases, irretrievably. It is quite common in these instances for a parent to cut a child out of a Will entirely and give the inheritance to another party (often a charity). A flurry in recent cases (such as the high profile Melita Jackson case last year) have highlighted this problem. Mrs Jackson had left her daughter, Heather Ilott, out of her £500,000 Will when she passed away in 2004, instead, bequeathing the money to three animal charities. Mrs Ilott challenged the Will under the 1975 Act, and was awarded £50,000.

However, she again challenged this ruling and the amount was raised to £163,000 by the Court of Appeal. Once again, the ruling was contested by Mrs Ilott, and the Supreme Court reversed the final amount, leaving her with just £50,000, much of which was taken up in legal costs. It demonstrates that sometimes, continually contesting a ruling can be counter-productive.

Leaving a person out of your Will

It is not possible to prevent a claim under the 1975 Act, but advice taken when making your Will may help to make such claims unlikely.

If you do decide to leave someone out then it is important you make your reasoning clear, preferably in writing. You can leave a letter with your Will, explaining that the person was considered, why that person is being left out (or not being left as much as he or she might expect) and that the final decision was not a ‘spur of the moment’ impulse, but a measured and carefully thought-out choice.  You may decide to leave that person at least something in your Will.

Your solicitor will also keep attendance notes, which may give further detail and show that the solicitor advised you carefully and you made your decision based on that advice.

Other challenges

If you are suffering from dementia (even in the very earliest stages) then it’s important that a doctor testifies that you have ‘testamentary capacity’ and are fully mentally aware of the contents of your Will, the extent of your estate, and the potential claims on your estate. If your doctor acts as a witness to your Will and makes a note in your medical records that, in your doctor’s opinion, you had capacity, this would be strong evidence against any subsequent claim that you lacked capacity to make the Will.

Rather than cutting someone out entirely, it may be a good idea to leave them a token gesture or offer an inheritance amount on condition that the child does not contest the Will.

There are other ways a Will may be challenged, such as lack of understanding what the Will says. Your solicitor will explain the terms of the Will to you, which will avoid such a claim.

Finally, one of the best ways of ensuring a fair distribution of your estate is to place it in a Will Trust supported by a detailed letter of wishes, as long as it is not obvious that it has been done to deprive a child of their inheritance. The money will be controlled by the trustees, and it’s usually only worth doing this if the amount exceeds £50,000.

If you’re having trouble deciding how to draw up your Will, or if you are thinking of omitting a close relative and you want to ensure your wishes are adhered to, talk to a Will and Probate law specialist.

If you wish to discuss Wills or any other legal issues please contact The Private Client team at our Tunbridge Wells Office on 01892 526 344

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.