Myth-busters #10 – I can leave family members out of my Will and there’s nothing they can do about it

This is partially true, because here in England and Wales, we have the freedom to dispose of our assets in any way we choose in our Wills. Unlike many other countries, we don’t have any ‘forced heirship’ rules governing who must receive what after someone has died. You can therefore make a Will leaving your property and other assets (called your estate) to any person, charity or other organisation you wish to.

However, there is a law called the Inheritance (Provisions for Family and Dependants) Act 1975 (the IPFDA) which limits this freedom to some degree and gives specific people the right to challenge your Will, if they feel disappointed because they haven’t received anything, or because they believe they should have received more. Interestingly, this applies both in cases where there is a Will, or where there is no Will so that the Intestacy Rules apply.

The people who can bring a claim under the IPFDA are:

• Your spouse or civil partner;
• Your former spouse or civil partner who has not remarried or entered into a further civil partnership;
• Someone living with you as your partner for a least 2 years prior to your death;
• One or more of your children or step-children (including adult children);
• Anyone you’ve treated as your child or children (for example, but not necessarily, adopted or fostered);
• Someone maintained by you (i.e. someone you financially supported)

Any of these people have the right to bring a claim under the IPFDA to ask the Court to reconsider the gift from your estate.

Whether or not their claim is successful will depend entirely on the specific circumstances. The Court will consider various points, including: why you left the person out (or didn’t leave them as much as they wanted); what their relationship is to you; their financial position and the financial position of anyone else that the Court’s decision will effect; the size and nature of your estate; whether or not the Claimant or any other person that the Court’s decision will effect has any physical or mental disability; whether you had any moral obligation to leave something (or more) to the person bringing the claim.

If you think a claim against your estate is likely and want to try and reduce the chances of a claim being successful, there are steps you can take. For instance, you could leave detailed instructions, wishes and explanations about why you chose to leave out (or not leave more) to the person in question. This can be done either in a Letter of Wishes, a private letter to the potential Claimant, or a Witness Summary. These documents will not guarantee the disgruntled person won’t bring a claim, or that their claim will not succeed, but it will help the Court to understand your reasons and provide details of the circumstances of your family and loved ones at the time you made your Will.