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Are you able to Exclude a Child or other Beneficiary from your Will?

English Law gives you the freedom to exclude a child or any other beneficiary from your Wills. Children, and certain other beneficiaries, however, have the right to make a claim against your Will under the Inheritance (Provision for Family & Dependants Act) 1975. In this blog we’ll talk about who is able to make such a claim, what the ramifications of such a claim may be and also what provisions you can take to help prevent such a claim from being successful.

 Who is able to make a claim under the Inheritance (Provision for Family & Dependants Act) 1975

The following list of individuals are eligible to make a claim against a Will under the Inheritance Act 1975:

  • spouse or civil partner of the deceased;

  • former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership;

  • a child of the deceased;

  • any person who in relation to a marriage or civil partnership in which the deceased was at the time a party, was treated by the deceased as a child of the family (most commonly a step child);

  • a person who was living in the same household as the deceased, as ‘husband or wife’ or as a civil partner of the deceased for a period of two years ending immediately on the deceased’s death (most commonly known as a cohabitee);

  • any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (ie someone financially dependent on the deceased).

 

What can you do in your Will to help defend against such a claim?

It is not possible to stop somebody from making a claim against a Will under English law but there are things that can be done in order to provide a more robust defence against any such claim. In the Wills that Goodwills produces, we recommend that clients who are excluding a beneficiary listed above have an Exclusion Letter prepared. This letter is legally drafted and includes the Testator’s reasons for excluding that particular beneficiary. The Exclusion Letter is also referenced within the Will. 
 
If you are excluding a beneficiary who may later make a claim against your Will, it is very important that your Will is properly drafted; for more information on our Will drafting services, click this link.
 
Where beneficiaries have been excluded, it is also strongly recommended that Professional Executors are appointed. Goodwills sister company Premier Solicitors have a Contentious Probate team who are able to fight claims against your Estate and we are also able to be appointed as Professional Executors in your Will.
 

What other concerns are important if a child or other beneficiary is being Excluded?

Verifying the mental capacity of the client (the ‘Testator’) is always of vital importance when drafting a Will. That being said, one of the most common ways that an excluded child or other beneficiary will try to use in order to overturn a Will is to try to show that the Testator lacked the necessary Testamentary Capacity to make the Will. If you make your Will with Goodwills, then we supervise the Attestation process and can also advise you and your GP of what steps should be undertaken to document your mental capacity at the time the Will is executed. 

Can Goodwills help if a claim is being made against my mother/father’s Estate? Or if a claim is being made against another Estate of which I am a beneficiary?

Yes. If you are a beneficiary of a Will that is being challenged, or an Executor of such a Will, then Goodwills can help. Our sister company Premier Solicitors can deal with the Probate, in order to ensure that all correspondence is dealt with properly. Furthermore, they have a Contentious Probate team who is able to defend the Estate against such a claim. More information on ou Contentious Probate service can be found by clicking this link.