In England and Wales, you generally have the freedom to leave your estate to whoever you choose. This includes the freedom to deliberately exclude family members or others who might expect to inherit. However, some people have the right to bring claims against your estate if they believe reasonable provision has not been made for them. Understanding these rules helps you make informed decisions.
In this guide
Common reasons for exclusion
People exclude relatives or others from their wills for many reasons:
- Estrangement: A relationship has broken down and there has been no contact for many years
- Previous provision: The person has already received significant gifts during the testator's lifetime
- Wealth: The excluded person is already financially secure and does not need inheritance
- Behaviour: Concerns about how the person might use inherited money (for example, addiction issues)
- Other beneficiaries: Preference for supporting other family members, friends, or charities
- Blended families: Complex family dynamics in second marriages
Who can make a claim against an estate?
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to apply to the court for reasonable financial provision from an estate. Those who can claim include:
- Spouses and civil partners
- Former spouses and civil partners who have not remarried
- Cohabitees who lived with the deceased as husband, wife, or civil partner for at least two years before death
- Children of the deceased (of any age)
- Anyone treated as a child of the family
- Anyone who was being maintained by the deceased immediately before death
What the court considers
If a claim is made, the court considers various factors including:
- The financial needs and resources of the claimant
- The financial needs and resources of other beneficiaries
- Any obligations the deceased had towards the claimant
- The size and nature of the estate
- Any physical or mental disability of the claimant
- The conduct of the claimant in relation to the deceased
- Any other relevant matters
For spouses and civil partners, the standard is what would be reasonable for a spouse to receive. For others, the standard is what would be reasonable for their maintenance.
Documenting your reasons
While you are not legally required to explain exclusions in your will, doing so can be helpful. A letter of wishes kept with your will can:
- Record your reasons for excluding someone
- Explain your relationship with the excluded person
- Note any previous provision you have made for them
- Help executors and the court understand your thinking
If a claim is brought against your estate, this documentation may support your executors in defending your wishes.
Making a token provision
Some people choose to leave a small token gift rather than excluding someone entirely. This acknowledges the person without providing a substantial inheritance. However, a token gift does not prevent a claim under the Inheritance Act if the person can show they were dependent on you or that reasonable provision was not made.
Whether a token gift is appropriate depends on your specific circumstances and the nature of the relationship.
Reducing the risk of successful claims
While you cannot prevent claims from being made, you can take steps to reduce their likelihood of success:
- Professional drafting: Have your will prepared by a qualified will writer or solicitor who can document your capacity and intentions
- Clear documentation: Record your reasons for your decisions in writing
- Regular reviews: Keep your will up to date as circumstances change
- Consider all options: Think about whether making modest provision might satisfy potential claimants while protecting your main beneficiaries
- Lifetime gifts: In some cases, making gifts during your lifetime may be more effective than leaving them in your will, though this requires careful consideration
Professional guidance
If you are considering excluding someone from your will, particularly a spouse, child, or dependent, it is worth discussing your situation with a professional. Will writers and solicitors across Kent, including in Tonbridge and Sevenoaks, can help you understand your options and draft provisions that best protect your wishes.
Key takeaways
You have significant freedom to decide who benefits from your estate, but some people have the right to bring claims if they believe reasonable provision was not made for them. Documenting your reasons, having your will professionally drafted, and considering all your options can help protect your wishes. While you cannot guarantee that no claim will be made, you can take steps to reduce the risk of a successful challenge.
Frequently Asked Questions
Can I disinherit my children?
In England and Wales, there is no legal obligation to leave anything to adult children. However, children may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they can show they were dependent on you or that reasonable provision was not made for them.
Should I explain why I am excluding someone?
You are not legally required to explain exclusions in your will. However, documenting your reasons in a letter of wishes can help executors and the court understand your thinking, which may be relevant if a claim is made against your estate.
Can someone contest my will if they are excluded?
Certain people can bring claims under the Inheritance Act 1975, including spouses, children, cohabitees, and dependants. The court will consider whether reasonable financial provision was made for them, regardless of what your will says.
What is the Inheritance (Provision for Family and Dependants) Act 1975?
This Act allows certain categories of people to apply to the court for reasonable financial provision from an estate if they believe the will (or intestacy rules) did not make adequate provision for them. The court has discretion to order payments from the estate.
How can I reduce the risk of a claim against my estate?
While you cannot prevent claims, you can reduce their likelihood of success by documenting your reasons clearly, ensuring your will is professionally drafted, and considering whether making a modest provision might satisfy potential claimants without significantly affecting your main beneficiaries.