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There are several reasons that someone may wish to exclude a child from their Will. This could be due to estrangement, broken relationships or because they have previously made lifetime gifts to their child. People may also wish to exclude a child from their Will if they consider their child to be wealthy, or for inheritance tax purposes, as documented recently in the headlines surrounding Bruce Forsyth’s Will.
Whatever the reason or circumstances may be, what do you need to know if you are considering excluding a child from your Will?
Firstly, it is important to note that you can leave your estate to whomever you please. This is known as ‘testamentary freedom’. Although some countries impose forced heirship, there is no legal requirement in English law to leave your estate, or gifts in your estate, to your children.
That being said, whether you choose to leave part of your estate to your children or not, your Will can still be contested and claims could be brought against your estate.
The Inheritance (Provision for Family and Dependants) Act 1975 allows children of a deceased person to bring a claim against the estate if they can prove that the deceased’s Will or intestacy failed to make ‘reasonable financial provision’ for them.
We recently published an article on claims under the Inheritance (Provision for Family and Dependants) Act 1975.
Every case is different and the outcome will depend on the specific facts. A well-known case is Ilott v The Blue Cross and others (also referred to as Illot v Mitson).
This significant case demonstrates the importance of seeking professional advice when making a Will, and how crucial written records can be, from the time the Will made, explaining the person’s reasons for excluding a child from their Will.
Having a professionally drafted Will is one of the most important things that you can do. Discuss the situation with your solicitor so they are aware of your circumstances.
Your solicitor may suggest you write a letter to accompany your Will, explaining the reasons why you have included or excluded certain people in your Will. Your thoughts and feelings are of the utmost importance.
Your letter will not prevent any claims being brought against your estate. However, it could be vital evidence for your beneficiaries to use in defending a claim.
Another possibility may be to leave a small gift in your Will to your child and then include a ‘no contest clause’, stating that, if any beneficiary brings any claims in relation to the Will or the estate, then they will forgo their gift or inheritance under the Will.
The aim of this is to dissuade a beneficiary from bringing a claim against your estate or seeking to challenge your Will. Should they still proceed with their claim, then the result is that the beneficiary’s rights under the Will fall away. Care needs to be taken when drafting these kinds of clauses and professional advice is always recommended.
The moral of the story is to ensure that your Will is prepared professionally by a solicitor who can advise you as to the most appropriate steps to take when considering disinheriting a child. Although it is not possible to prevent future claims against your estate or your Will, the steps taken at the time you make your Will could help ensure your wishes are carried out after you have passed away.
If you would like to discuss this further, please contact our Wills & Wealth Planning team.
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