By Head of Wills, Solicitor James Antoniou
It’s commonly thought that your Will is your final say in how your Estate is to be distributed once you've died. In the vast majority of cases it is, but there are also circumstances where it isn't the case.
Under English & Welsh law, people are given the legal right to set out who they want to be their beneficiaries. This is called Testamentary Freedom. This is not something which is offered in all countries. For example, in France they have a system of forced heirship rules which means that the law dictates who must benefit from your estate, or a proportion of it, when you die.
Testamentary Freedom means that you are free to benefit whomever you choose in your Will and do not have to have regard for anyone else, not a spouse or a child or anyone in fact. You are given the legal right to disregard your family and leave everything to charity if you want to.
However, in order to counter balance this freedom, the law in England & Wales gives certain people to right to challenge a Will. This is dealt with by the Inheritance (Provision for Family and Dependents) Act 1975.
This Act is designed to enable people who have either been excluded from a Will, or feel that they haven't been left enough, to bring a claim against a deceased's Estate after their death.
The type of person who can bring a claim under the Act is not unlimited. In fact there are only certain categories of people who are eligible. These include:
- A spouse or civil partner
- A former spouse/civil partner who hasn't remarried or re-entered into a civil partnership
- The deceased's children or someone treated as the deceased's child such as a step-child or foster child
- A person who has been living with the deceased for the two year period leading up to the deceased's death
- A person who was being financially maintained by the deceased while they were alive.
There have been significant numbers of cases brought before the Courts over the years where challenges under this Act have been made. The outcome of these challenges are usually determined on the facts of each individual case and the circumstances involved.
It’s impossible to exclude the application of the Act under your Will. However, one aspect which the Court is likely to be interested in when assessing a claim is the reason why you decided to exclude a particular person from your Will or limit the amount you wanted them to receive.
The reasons for this decision may very well be highly personal and therefore we wouldn't recommend you write the reasons in your Will, particularly as it may become a public document if your Executors need to obtain a Grant of Probate in your Estate.
Instead, you could write a side letter, sometimes called a Letter of Wishes which allows you to express your reasons. The Letter of Wishes is in addition to your actual Will but can be usually stored alongside it.
Should your Will be challenged then the Letter of Wishes could set out that you are making a conscious decision to exclude a certain person or limit what they receive. It also enables you to support your other decisions, such as why you may have chosen a particular charity to benefit from your estate. For instance, you may have a particular connection with the charity or received help from them during your lifetime.
When making a Will with Co-op Legal Services we can help you understand your options. We can also store your Letter of Wishes alongside your Co-op Will as part of our free lifetime storage service.