One of the benefits of making a Will is being able to decide who should inherit your estate. For most people, those decisions are fairly straightforward, but family relationships can be complicated and there are occasions when somebody decides that they do not want a particular relative to inherit.
We sometimes see this where a parent has been estranged from an adult child for many years. There are other reasons too. A parent may have provided substantial financial help to one child during their lifetime, relationships may have broken down, or somebody may simply have their own reasons for wanting their estate to pass elsewhere.
In England and Wales, there is no general requirement for a parent to divide their estate equally between their children, or indeed to leave an inheritance to a child at all. It is therefore possible to leave somebody out of your Will. The position becomes more complicated, however, because certain people may be able to make a claim against an estate after somebody dies.
Do children have an automatic right to inherit?
If you make a valid Will, you can choose how you would like your estate to be distributed. Unlike some other legal jurisdictions, England and Wales does not have a general system under which children are automatically entitled to a fixed proportion of a parent’s estate.
You might leave your estate equally between your children, divide it in different proportions, make gifts to other relatives or friends, include a charity, or decide not to provide for a particular child.
Where there is no Will, the position is different because the intestacy rules determine who inherits. Making a Will gives you the opportunity to make your own arrangements instead.
There are circumstances in which a person who has not been provided for, or believes that the provision made for them is inadequate, may be entitled to ask the court to consider their position.
What happens if I deliberately leave a child out of my Will?
Consider a parent with three adult children. Two remain closely involved in their parent’s life, while the relationship with the third broke down many years ago and there has been little or no contact since.
The parent decides that, when they die, their estate should be divided between the two children with whom they still have a relationship.
They can make a Will containing those instructions.
After their death, the excluded child may want to know why they have not inherited. They may also take legal advice about whether they have grounds to bring a claim against the estate.
The fact that they are a child of the deceased means they fall within one of the categories of people who can potentially apply under the Inheritance (Provision for Family and Dependants) Act 1975. It does not follow that the court will automatically award them an inheritance.
Can an excluded relative challenge my Will?
There are two issues which are sometimes described collectively as “challenging a Will”, although legally they are different.
The first is a challenge to the validity of the Will itself. A dispute of this kind might concern whether the person making the Will had the necessary testamentary capacity, whether they knew and approved its contents, whether there was undue influence or whether the Will was executed correctly.
The second does not necessarily involve an allegation that there is anything wrong with the Will.
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to apply to the court where the distribution of an estate does not make reasonable financial provision for them.
A Will can therefore be perfectly valid and still be the subject of a claim under the 1975 Act.
Who can make a claim under the Inheritance Act?
The legislation identifies particular categories of people who may be able to apply. These include a surviving spouse or civil partner, certain former spouses or civil partners, children of the deceased, some people who were treated as a child of the family, qualifying cohabitants and, in certain circumstances, somebody who was being maintained by the deceased.
Being eligible to make an application is not the same as being entitled to receive money from the estate.
The court considers the individual circumstances. These can include the applicant’s financial resources and needs, the needs of beneficiaries, any responsibilities the deceased had towards the people involved, the size and nature of the estate, disability and other matters which may be relevant.
The relationship between the applicant and the deceased can therefore form part of a much wider picture.
Can an adult child make a claim?
An adult child is one of the people who can potentially bring a claim under the 1975 Act.
There is no rule, however, that an adult child who has been excluded from a Will must receive part of their parent’s estate. Their financial circumstances and the wider facts of the case will be relevant.
For example, the circumstances of an independent adult with their own income, home and savings may look very different from those of an adult child who had been financially dependent on their parent.
Estrangement may also form part of the background, but it would be unwise to assume that a long period without contact automatically prevents a claim.
This is why we recommend discussing the circumstances when the Will is prepared, particularly if you already expect your decisions to cause disagreement within the family.
Should I explain why somebody has been excluded?
There can be value in recording the fact that an exclusion was deliberate and explaining the circumstances behind your decision.
Exactly how this should be dealt with will depend on the situation. It may be appropriate for the professional preparing the Will to retain detailed attendance notes, and in some cases separate supporting documentation may be considered.
The purpose is not simply to produce evidence that you were unhappy with somebody. Family relationships are rarely that simple. A proper record can instead help explain the circumstances that existed when the Will was made and show that you considered the decision rather than accidentally overlooking somebody.
This can be particularly useful where the contents of a Will differ significantly from what family members might otherwise have expected.
What if I want to leave different amounts to my children?
There is no requirement to treat children equally in a Will.
Sometimes there is a straightforward explanation for leaving different amounts. One child may already have received considerable financial assistance towards buying a home or establishing a business. Another may have additional needs which the parent would like to take into account.
There can also be circumstances where parents simply have different relationships with their adult children and decide to reflect that in their Wills.
Where an unequal distribution is intentional, it is worth making sure that the Will has been prepared with a clear understanding of the family circumstances and that appropriate records are kept.
What if we have been estranged for years?
A long period of estrangement may be an important part of the background, but it does not create an automatic bar to a claim.
Estrangement also takes many forms. In one family there may have been no contact at all for twenty years. In another there may have been occasional contact but a difficult relationship. There may be disagreement about why the relationship broke down in the first place.
If estrangement is an important reason for the decisions being made in your Will, tell the person advising you. The history may be relevant if questions are raised about the estate later.
Should I leave them £1?
We occasionally hear the suggestion that somebody should leave an estranged relative £1 so that they cannot challenge the Will.
There is no general rule in England and Wales which makes this work.
A nominal gift does not prevent somebody who qualifies under the 1975 Act from applying for reasonable financial provision. If you genuinely do not want somebody to benefit from your estate, it is better to deal with the position properly when making the Will rather than relying on a token gift.
Can I leave my estate to somebody outside the family?
Yes. Subject to the possibility of claims against the estate and other legal considerations, a Will can include friends, charities and other beneficiaries as well as family members.
For some people, this is particularly important. Someone with little contact with their relatives may have a close friend who has played a significant role in their life, or they may want a charity they have supported for many years to benefit from their estate.
If those wishes are likely to surprise relatives, careful preparation of the Will and good record keeping become particularly important.
How long does someone have to make a claim?
An application under the Inheritance (Provision for Family and Dependants) Act 1975 will normally need to be made within six months of the Grant of Representation.
The court can permit an application outside that period, so it should not be treated as an absolute cut-off in every case.
This is particularly relevant for executors. If they know that a claim has been threatened or there are obvious concerns about a disputed estate, they should take appropriate legal advice before distributing the assets.
Should I tell somebody that I’ve excluded them?
There is no general requirement to tell beneficiaries, or somebody who has been excluded, what your Will contains while you are alive.
Whether you choose to discuss it with your family is a personal matter.
Some people would rather explain an unequal inheritance themselves so their children understand their reasoning. For others, particularly where relationships are already difficult, having that conversation may cause more problems than it solves.
What is more important from an estate planning perspective is that the decision has been properly considered and that the Will accurately records what you want to happen.
Making a Will when family relationships are complicated
A straightforward Will can be relatively simple to prepare when everybody gets along and the estate is being divided in the way the family expects.
More care is needed when somebody is being excluded, children are receiving substantially different amounts or there is already a history of disagreement within the family.
You are still entitled to make your own decisions about your estate. It is simply worth understanding that those decisions do not exist in isolation from the law relating to claims against estates.
Taking advice when the Will is prepared also gives you an opportunity to explain the family circumstances, consider whether anybody may have grounds for a future claim and make sure there is an appropriate record of the decisions you have made.
At AHJ Wills & Estates, we help people across Sheffield, Rotherham and the surrounding areas prepare Wills which reflect their wishes and their individual family circumstances.
If there is somebody you are considering leaving out of your Will, or your family arrangements are more complicated than a simple equal division between your children, speak to us about it when you make or review your Will.
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