Excluding Someone From Your Will, and Protecting Your Estate From a Claim
It's your right to decide who benefits from your Will, but leaving someone out doesn't always end the conversation there. Certain people can still bring a claim against your estate, even when your wishes are perfectly clear. Here's what you need to know, and how to make your decision as safe as possible.
Can you legally leave someone out of your Will?
Quick summary: Yes. In England and Wales you have testamentary freedom, the right to leave your estate to whoever you choose, and to exclude anyone you like, including children. Family life is often complicated, and there can be good reasons for treating people differently. But testamentary freedom isn't absolute. Certain people can still bring a claim against your estate after you're gone, even from a Will that is completely valid and properly signed.
This page covers two separate things that often get confused. One is whether your Will itself is valid, was it signed and witnessed correctly, did you have the mental capacity to make it, were you free from pressure. The other is whether someone eligible under a specific law can claim a share of your estate, regardless of what your Will says. Understanding the difference helps you protect your wishes properly.
Who can claim against your estate, even if you exclude them?
Even a perfectly valid Will doesn't shut the door completely. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to apply to the court for a share of an estate, if they believe reasonable financial provision hasn't been made for them. This only applies to people in specific categories:
- Your spouse or civil partner
- A former spouse or civil partner who hasn't remarried
- Your children, including adopted children
- Anyone treated as a child of the family, including stepchildren
- A cohabiting partner who lived with you for at least two years before your death
- Anyone else you were financially maintaining
Being eligible to claim doesn't mean a claim will succeed, or even be made. Most families never see one. But if a claim is brought, your executors and beneficiaries will need to defend it, which can mean real cost and delay to your estate. Claims must normally be made within six months of the Grant of Probate, and the court gives the most weight to the needs of a spouse or civil partner.
If you're on the other side of this, wondering whether you can bring a claim against someone else's estate, we've set out how contesting a Will works, including the time limits that apply.
How to reduce the risk of a successful claim
- Use a professional to prepare your Will. A professionally drafted Will is harder to challenge on technical grounds, and gives you the chance to address anything contentious before it becomes a problem.
- Consider a Discretionary Trust instead of full exclusion. Leaving a smaller share, or a share held in trust rather than nothing at all, can sometimes reduce the likelihood of a successful claim while still reflecting your wishes.
- Have your capacity assessed if there's any doubt. If you're elderly, unwell, or making a Will that some family members won't welcome, a testamentary capacity assessment from a qualified professional can help protect your wishes from later challenge.
- Be clear about loans and gifts made during your lifetime. Keep records, and consider whether your Will should account for money already given to one child but not another.
- Formalise any divorce financial settlement properly. An informal agreement isn't legally binding. Without a court order, a former spouse who hasn't remarried may still be able to bring a claim.
- Be careful about promises. If someone can show they relied on a promise you made to their detriment, for example about inheriting a property, they may have grounds for a separate claim.
Writing a Letter of Wishes
If you're excluding someone who could potentially bring a claim, we recommend writing a Letter of Wishes alongside your Will. It isn't a legal document and doesn't need to be witnessed, but it gives your reasons a voice if a dispute ever arises.
- Be honest and factual, rather than emotional
- Include when you were last in contact, and any relevant history
- Record any financial support or gifts you've already given, and when this stopped
- Explain any positive reasons for leaving more to other beneficiaries
- Sign and date it, whether typed or handwritten
- Store it with your Will, often in a separate envelope marked private and confidential
A Letter of Wishes can't override the law, but it helps the people left behind understand your reasoning, and can be genuinely persuasive if your estate ever needs to be defended.
Thinking about excluding someone from your Will?
These decisions are rarely simple. We can talk you through your options in plain English, including whether a Discretionary Trust or a Letter of Wishes might be the better route for your family.
Make a decision you can feel confident will hold up
Call 01934 442030 for a free, no-obligation conversation about excluding a beneficiary or protecting your estate from a future claim.
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