Can I leave someone out of my will?

It was recently reported in the press that a 94 year old pensioner, (Mr Hodge), excluded his partner, (Mrs Thompson), of 42 years from his will, so that she did not inherit anything from his £1.5 million pound estate. He instead divided his estate equally between two of his tenants

However, even though Mr Hodge had his wishes written into his will, in a very rare decision, Judge Jarman overruled his wishes and granted Mrs Thompson a portion of his estate.

Judge Jarman ruled that Mr Hodge ‘failed to match up to his responsibilities to his long-term partner.’ This case highlights that even if you have sought legal advice in connection with the preparation of your will, if you appear to have failed in your responsibilities towards a partner or a child, your wishes in your will may be overruled.

So how is it possible for a court to overrule the deceased’s wishes in a valid will and, if you do want to exclude someone from your will, is there a chance that they could still inherit?

What is a will?

A will is a legal document that states, in writing, who will benefit from your estate following your death. A will can also contain wishes in respect of appointing legal guardians for any minor children, and making arrangements for the care of any animals.

Making a will is one of the most important things you can do to protect your family and loved ones after your death.

For a will to be valid, it must meet very strict legal requirements, both in terms of the drafting, and signing or “execution” of it.

However, on the rarest of occasions, even if the will is valid, it isn’t always enough.

How can I write someone out of my will?

If you wish to exclude someone from your will who would reasonably expect to be named as a beneficiary, it is advisable to include a separate clause in your will. It should refer to a separate letter commonly known as a ‘Statement of Reasons,’ to explain why you have decided to leave them out of your will. The Statement of Reasons should contain as much background information as possible as to why you have decided to exclude that particular person, and should be clear, reasonable and logical. You need to sign and date this letter and keep it with your will in the event that it is ever needed after your death.

However, it should be noted that leaving a Statement of Reasons with your will does not automatically prevent a claim being brought against your estate. But it can be helpful and persuasive evidence for the court to take into consideration when dealing with any claim, to explain your reasons for leaving someone out of your will.

What are my responsibilities?

The law makes provision for the court to make an order for reasonable financial provision out of your estate for the following categories of persons listed below:-

– A spouse/civil partner
– Any children
– A former spouse if they have not remarried/entered a new civil partnership
– Any non-biological members of the family who you treated as a child of the family, e.g. step children or adopted children
– Any person who, immediately before your death, you were maintaining financially, either in whole or in part

Is my will final or can it be changed after my death?

If a person included in one of the categories above is unhappy with the fact that no, or little provision has been made for them by your will, it is possible that he or she may bring a claim against your estate for reasonable financial provision, under the Inheritance (Provision for Family & Dependants) Act 1975). A claim must be made within 6 months of the date of the Grant of Probate, although in some circumstances, the court can use its discretion to extend this time period. This does not necessarily mean that a claim would be successful. If a claim is successful, a Judge can order that financial provision or maintenance is made from your estate.

You should always seek professional legal advice when making your will. You should ensure that your Solicitor is a member of the Society of Trust and Estate Practitioners (STEP) which is the global professional association for practitioners who specialise in family inheritance and succession planning. A full list of STEP members can be found by clicking here.

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