The law in England and Wales tends to support you doing what you want in your will, in contrast to most other European countries which have ‘forced heirship’ rules meaning that property must be left to particular family members.
As usual with the law in the UK, it is not all as easy as that. We often see clients who want to make a Will leaving their assets to someone other than those that you would normally expect; the most common exclusions being their children, but sometimes even their wife or husband.
You might have sound reasons. Children might not have bothered with you for years and then pop up after your death. Family fall outs may have left you feeling so upset with them that you want to make sure they don’t get a penny from you. But, there is always a risk that of the Will being challenged by family members that you have left out. There are various grounds for challenging a Will, including that you did not understand what you were doing or that you were pressured in to it. There is also the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) which protects the rights of close family members, in particular children.
The IPFDA allows a disinherited child to bring a claim if they can show their parent’s will fails to make ‘such financial provision as would be reasonable in all the circumstances to enable the child to maintain themselves in a manner suitable to their circumstances’.
Courts are reluctant to make awards to able bodied children who are in full employment but that does not mean an award will not be made in the right circumstances. The recent case of Ilott v Mitson demonstrates the operation of the IPFDA nicely. The Court awarded a daughter money from her mother’s estate even though mother had clearly indicated the reason for excluding her daughter, based on no communication for many years. The Court found it was unreasonable for the mother not to provide for her daughter in her ‘desperate financial position’.
This does not mean you should not disinherit a person if you want to. You need proper advice to make sure you are aware of the consequences and the best way to implement your wishes to make sure they are respected as much as possible.
We can provide you with all the advice you need, including the risk of a challenge by a disinherited beneficiary after your death and help you structure your planning, including your Will, in the best possible way.
Come to see us to discuss what you need. The first meeting is always free.