How to Cut Someone out of Your Will

30 November 2018

In England and Wales, it is possible to cut someone out of your Will. However, certain individuals are legally entitled to challenge your Will if they feel that they have not been adequately provided for. This includes your spouse and your children, as well as anyone who lived with you or who was financially dependent on you before your death.

There are steps that you can take to make your Will as robust as possible and minimise the risk of it being successfully challenged after you die.

Can I Include and Exclude Whoever I Want in My Will?

In England and Wales, you do have the legal right to leave your Estate to whoever you want in your Will. This being said, it's not absolutely guaranteed that your Estate will be distributed in line with the terms of your Will.

This is because England and Wales, unlike some other countries, has what's called Testamentary Freedom. This means that you are free to name anyone you want in your Will, including charities, organisations and individuals, regardless of their relationship to you. You can also choose to exclude relatives, such as your spouse, child or anyone else as you see fit.

This is not a freedom that is afforded to people the world-over. One country where Testamentary Freedom is not available is France, for example, where there is a system of forced heirship rules. This means that the law always determines who will benefit from a person's Estate when they die.

In England and Wales, everyone is at liberty to include or exclude anyone in their Will if they choose to do so. But (and it's a big 'but') in order to balance this the law in England and Wales does entitle certain individuals to challenge a Will if they feel that they have not been sufficiently provided for.

Who Can Challenge My Will?

Under the Inheritance (Provision for Family and Dependents) Act 1975, certain individuals are entitled to challenge your Will after you die.

These individuals are:

  • Your spouse or civil partner
  • Your ex-spouse or civil partner (providing they haven't remarried or entered a new civil partnership)
  • Your child or anyone who was treated as your child (such as a stepchild or a foster child)
  • Someone who was living with you for the 2 years leading up to your death
  • Anyone who was financially dependent on you before your death

It has been reported that the number of disputed Wills has been increasing over the last few years, with multiple marriages and cohabitation cited as possible reasons for the increase. These cases are brought before the Courts who will then make a judgement based on the circumstances of each individual case.

Reduce the Risk of Your Will Being Challenged

While it's not possible to prevent anyone from exercising their legal right to challenge your Will after you've died, there are things you can do to reduce the risk of a challenge being successful. One of the most effective ways that you can do this is to get your Will professionally drafted by a Will Writing firm that is regulated by the Solicitors Regulation Authority.

A poorly drafted Will or a DIY Will is far less likely to hold up if challenged in Court. For more information, see Dangers of Making a Will without Professional Advice.

A regulated Will Writing firm, such as Co-op Legal Services, will talk through your circumstances in detail, keeping a clear record of your instructions and of these discussions so that this can be used as evidence if your Will is challenged.

A regulated Will Writer can also ensure that you have testamentary capacity at the time of making your Will (meaning, in brief, that you understand the extent of your Estate and the implications of the terms you're setting out in your Will). Evidence of this will be documented so this can also be called upon as evidence if needed.

When considering a challenge to your Will, the Court are likely to be interested in establishing the reasons why you have excluded the person from your Will, or why you have limited the amount left to them.

While it is technically possible to include this information in the Will itself, these reasons may be very personal, in which case this is not recommended. If your Estate has to go through Probate after you die, then your Will could become a public document, so if you don't want to share this information with the world then it's best to keep it out of your Will.

Instead, you could document your reasons in a separate letter, sometimes called a Letter of Wishes, which can then be stored alongside your Will. In this letter, you can explain why you have chosen to exclude a certain individual from your Will, or why you have limited the amount left to them.

If you have left a substantial proportion of your Estate to a person or organisation that your relatives may question, then again you can explain your reasons for this in your Letter of Wishes. This may be a charity, for example, that have provided you or a loved one with assistance in the past.

If your Will is then challenged in the future, this letter can be used to prove to the Court that you made these decisions for good reason, in full knowledge of their consequences.

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