Can someone inherit from me even if I do not include them in my Will?
In England and Wales, we have testamentary freedom which means that we can leave our assets, after our deaths, to anyone we like. But is this really the case in practise?
The Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) allows certain people such as close family members and those that have been financially dependent upon us during our lifetimes, to make a claim against our Estate after our death. Their claim is for “reasonable financial provision” and the Court will consider multiple factors when deciding whether to grant any monies or assets to such a person.
Who can make a claim?
A spouse or civil partner could make a claim against your Estate if you have chosen not to leave anything to them. A person that you were cohabiting with or a child of yours could also make a claim. However, it is possible for a person that you are not even related to, to make a claim against your Estate if you have maintained them financially in some way during your lifetime.
What will be taken into consideration?
The individual making the claim against your Estate will ask the Court to make a decision on whether they should have received something under your Will and if so, how much. The Courts will consider many factors, for example: –
· The financial needs and resources of the person making the claim
· The financial needs and resources of any person that is benefiting from your Estate under the terms of your Will
· Whether you have any obligations and responsibilities towards the person that is making the claim
· Size and nature of your Estate
· The health (both physically and mentally) of the person that is making a claim or the person(s) that are named in your Will
How to retain your “testamentary freedom”
The most important step for you to take here is seeking professional advice and having your Will written by a professional person. As a matter of course, as Solicitors writing Wills, we take certain steps to ensure that you are protected. You can not stop someone from making a claim, but you can ensure that your wishes are properly evidenced so that the Court can look at the circumstances at the time and they can be confident in your decisions and why you made those decisions.
Please speak to us if you are in any doubt, it might be that you need to have another statement written to sit alongside your Will. These statements are private, even after your death, unless they are needed where a claim is made.
It might be that a professional capacity report is sensible – even if you clearly do have full capacity at the time of making your Will. This is because, in addition to the IPFDA, a person can also claim that you did not have the relevant capacity to make a Will or that you were influenced into having it written in the way that you have chosen to do so in in doing so, they are asking the Court to deem it as being invalid. Our team at Pepperells take certain steps in every case to ensure that you are as protected as far as possible. To decrease any risk of a claim being made, or certainly a successful claim being brought about after your death.
Do not take chances, speak to our Private Client team.
