When family members fall out, sometimes the emotions can run very deep. It may be impossible to reconstruct the bridges we burn. Difficult though it can be, disinheriting a child or other family member may be the best way of protecting our wishes once we are gone.
In England and Wales a testator may leave their estate to whomever they please: they have “testamentary freedom.” But this is subject to any successful legal challenge from a family member or dependant, who can prove to a court after the testator’s death that they received unreasonably small provision under that Will.
It can sometimes defeat the whole purpose of the Will: recent news stories of court cases can clearly attest to this fact, much to the concern of lawyers and members of the public alike. One lady made it very clear in her Will that her daughter was to receive nothing, only for a court to overturn the Will and provide several hundreds of thousands of pounds to the daughter – and not even in a particularly large estate.
So how can you ensure that those with whom you have fallen out cannot make a claim on your money once you are gone?
The most accepted course of action is to write a Will explicitly excluding that person. You should also make a “letter of wishes” for your executor (and potentially, the court, should a claim arise at a later date) stating clearly your reasons for the exclusion.
It is also best to ensure that there are no financial ties during lifetime: if there is any sign of financial reliance, the court can use it to bolster their claim. Cutting all ties can be hard, but it is sometimes necessary to a successful Will exclusion.
Even with these safeguards, and even in the most evident family breakup, a claimant can be successful. It largely comes down to the court’s discretion after death.
Sometimes the best course of action is to actually make a small, sufficient gift under the Will, just to prevent the court from finding a lack of provision. There are some trusts which can “provide” for a prodigal child without the testator having to sacrifice too much money, or indeed their own principles.
Speak to your Will writer for information and guidance in this difficult and sensitive area of estate planning: they should be able to help.