Generally you have complete freedom to write your Will how you wish and leave your estate to anyone. However, if you fail to take into account certain members of your family or those who are financially dependent on you, your Will could be challenged in the event of your death.
The people who can make a claim against your estate if you do not make “reasonable financial provision” for them are:
- Your spouse or civil partner;
- Your former spouse or civil partner – provided they have not re-married or entered into a new civil partnership;
- Any person living with you as husband/wife/cohabiter/civil partner for 2 years immediately before your death;
- Your children;
- Any person (not being your child) who you treated as a “child of the family” – for instance a stepchild or a partner’s adopted child;
- Any person partly or wholly maintained by you at the time of your death.
It is essential to take legal advice on the steps you can take before drafting your Will, to reduce the possibility of a claim against your estate or, if one is made, reduce the chance of such a claim being successful.
Be aware of who can make a claim
You should make a family tree and know the extent of your family and dependents.
If you are making any regular payments to anyone – for example to a niece, nephew, mother-in-law, elderly relative or former employee – make sure that you provide details to your solicitor.
Consider making provision other than in your Will
You may wish to consider setting aside a lump sum or arranging a life policy to come into effect on your death rather than leave provision in your Will.
If you are to cease making provision on your death you could write a letter advising the person of this and the reasons why, or arrange a meeting with them. A note could be left with your Will stating why payments are to cease and attach the letter sent or note of your meeting.
Leave a statement to be placed with your Will
If you are excluding a person who falls within the above list, you could explain the reasons for this in a statement to be found with your Will. Without this there will be no evidence of your wishes and intentions. You cannot be called as a witness.
The statement should be factual and reasonable.
The reasons provided should be fair, sensible and rational – otherwise the statement could be challenged in court and create more problems for your executors.
The statement should be signed on the same date as your Will and updated to reflect changes in your personal and financial circumstances. If the statement is out of date this can cause more harm than good.
It may be prudent for a detailed attendance note to be made by your solicitor and left with your Will. You should sign this as being an accurate record of your intentions and instructions.
What is the next step?
Everybody’s circumstances and family tree are different. MACKS strongly recommend a face-to-face meeting with one of our specialist solicitors who will be able to explain things in greater detail and advise on the options available to achieve your wishes.