While you have the right to leave your money and possessions to whoever you choose, there is a possibility that some close family members could challenge your Will after your death if they have been left out.
The right of testamentary freedom means that you are entitled to include or exclude anyone when writing your Will.
However, family and those who depend on you for their upkeep may have the right to make a claim against your estate if they believe they have not been left money that they feel they are entitled to in order to meet their needs.
The Inheritance Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 allows a spouse, former spouse, child or other dependant to challenge a Will where they can show that they have not been left reasonable financial provision.
Reasonable financial provision is construed as enough money that they do not have to live in poverty, although the exact sum would be calculated by the court.
This means that after your death, your estate could be involved in lengthy and expensive legal action if your spouse, child or other individual who might expect continued financial support makes a claim against it.
Disinheriting your spouse
If you are going through a divorce and do not wish to leave your spouse anything in your Will, it can be beneficial to agree, if you both have your own wealth, that you do not expect to inherit anything from each other. While this does not guarantee that a claim will not be made, it reduces the likelihood.
There may be various reasons why you wish to leave someone out of your Will and it is a good idea to seek legal advice on how to protect your estate as there are measures which can be taken to try and avoid the risk of legal action.
For example, if you want to leave your home to your children, you could set up a life interest in it for your spouse, to allow them to continue living there for as long as they wish to. Once they die, the property would pass to your children. This means that your spouse could continue to live in their home, but would be unable to sell it and spend the money, for example, on care home fees, and would also be unable to leave it to anyone in their own Will.
It is often a good idea to speak to relatives about your intentions ahead of time, so that there are no nasty surprises and so that you can discuss with them your reasons for your decisions.
If you would like to speak to one of our expert Wills and Probate solicitors ring us on 01634 353 658 or email us at [email protected].