No matter what size your Estate is, one of the most important documents you will ever create is a valid and legal Last Will and Testament. It is the only way that you can ensure your wishes will be followed as you envisaged when you pass away.
However, life’s journey can be unpredictable. Your circumstances and wishes may change over time, including your desired inheritance provision for your loved ones, extended family members and friends. In fact, you may well wish to exclude someone from your Will, and there can be many good reasons to do so.
Read on to find out what your legal position is when it comes to disinheriting certain individuals, the circumstances under which you might consider it and how to go about it.
Before deciding to disinherit anyone from your Will, it’s important to speak to a legal expert and estate planner. For advice on your situation, please reach out to Redwood Financial for a complimentary 10-minute phone consultation.
Understanding your rights in England and Wales
As a testator (i.e., the person making the will) in England and Wales, you have what’s known as Testamentary Freedom, meaning you can leave your Estate to whomever you choose. This gives you the legal right to exclude a person from your Will, such as certain family members or a former spouse.
However, this right isn’t absolute. A spouse, civil partner, child, or financial dependant may still challenge your Will under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe they’ve not received reasonable financial provision.
Potentially excluded persons who can claim against the deceased’s Estate include:
- A spouse or civil partner
- A former spouse or civil partner (provided they have remarried or entered into another civil partnership
- A bloodline or adopted child
- Persons treated by the deceased as a child of the family, for example, a stepchild or foster child
- Any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (i.e. someone financially dependent on the deceased)
That’s why it’s vital to outline your intentions clearly and seek professional Estate Planning advice to ensure your wishes are respected.
So, just how easy is excluding someone from your Will?
Excluding someone from your Will can be difficult emotionally, but the process itself isn’t actually as complicated as you might imagine. That said, it’s not as simple as drawing a line through the names of the beneficiaries you want to exclude and writing in new ones!
Your Will is a legal document, and due process must be followed for it to be valid. Any physical amendments or attachments affixed to your Will render it invalid. We always recommend that you seek professional legal advice from an Estate Planner before disinheriting someone from your Will.
It must be done in a way that ensures your Will remains valid, and there are a number of factors that must be taken into account before excluding someone. This is achieved through an Exclusion Clause, naming the person that you do not want to inherit from your Estate.
It will include their full name, their relationship to you and clearly state that they should not receive any of your Estate, to ensure there can be no doubt that the exclusion is any other than deliberate and not a mistaken omission.
A Letter of Wishes should also be created explaining why you have excluded the beneficiary from your Will.
Using a Letter of Wishes to explain your decision
A Letter of Wishes is a non-binding document designed to give you the opportunity to outline your reasoning in your own words, providing valuable context to your executors or the court if your Will is ever challenged.
While it isn’t legally binding, it supports your Will and shows your decision was made consciously and with mental capacity. This can help reduce the likelihood of the excluded beneficiary disputing your Will.
It can also be used to outline how you would like your personal items to be distributed, as well as any wishes you have for your funeral arrangements.
The Letter of Wishes is a separate document, signed and dated by you and kept with the Will – although not attached to the Will, as this can invalidate it.
4 Reasons to Disinherit someone from your Will
The 4 reasons to disinherit someone from your Will should provide the key points you need to consider and the actions you should take.
Reason 1: Marriage
If your Will was drafted at a time in your life when you were single, you are likely to have named your beneficiaries as a family member or close friends, for example, a brother or sister. If you have since married, or have a cohabiting partner, you may well wish to ensure that your spouse/partner is now a beneficiary, if not the only person who is to inherit your Estate.
Perhaps you also have children from a previous relationship and want to ensure they are provided for from your Estate should you die unexpectedly.
The simplest option is to draft a new Will, which will automatically supersede the old one and reflect your current wishes. To avoid potential challenges in the future, we recommend that if you have previously told the beneficiaries of their inclusion in your old Will, then you should consider telling them that they have been removed.
Important Note: It is a fact that when you marry your Will is automatically revoked (unless you have made a Will in contemplation of marriage).
Reason 2: Divorce
A divorce does not cancel or invalidate your Will. Divorce only invalidates the specific gifts and clauses relating to your now ex-spouse or civil partner. The rest of your Will remains intact and valid. The critical point to consider here is the time between legally separating from your ex-partner and receiving your Decree Absolute to confirm your divorce. During this period of time, everything in your Will, including those articles and provisions for your spouse or civil partner, remains valid should you die.
See our financial advice for couples going through a divorce.
Again, the simplest way to resolve this issue is to draft a new Will that supersedes the old one.
Reason 3: Remarriage
A failure to update your Estate Planning when you remarry could mean that any children you have from a prior relationship receive less or even none of the inheritance you would have wanted them to have.
Remarriage revokes your existing Will, meaning that if you die before creating a new Will, you will have died Intestate, without a Will. Under the Rules of Survivorship, your new spouse will have Spousal Inheritance Rights and all of your share of the estate will pass to them automatically if you do not have any surviving children, grandchildren or great-grandchildren.
We would always recommend that both parties in any marriage, remarriage or civil partnership seek professional advice from an Estate Planning specialist like Redwood as soon as practicably possible, and ideally before the ceremony has concluded, but if this is not possible, then as soon as possible after the ceremony has concluded.
Get your Will reviewed by Jasmine Lambert, our qualified and experienced Chartered Financial Planner.
Use our Complimentary Callback Service to discuss your Estate Planning goals and aspirations with one of our Advisors.
Reason 4: Estrangement
Sometimes relationships dwindle, and the bonds that bound people years ago no longer exist. And sometimes, people simply just fall out. If you are estranged from a family member, it might make sense to disinherit them and make it clear through your Will that you have consciously excluded them to avoid any challenges or legal claims against your Estate when you die.
Estrangement typically applies to children, and you are essentially legally saying you no longer view them as your heir, and you don’t want your assets going to them when you die. You may also be estranged from your spouse or civil partner.
Ensure your Will is properly written with Redwood Financial
At Redwood Financial, we help families across the South Coast create robust, legally valid Wills that reflect their true wishes. Whether you wish to exclude someone or include other beneficiaries, our expert estate planners can help you protect your legacy for future generations
Excluding anyone from your Last Will and Testament is perfectly legal in England & Wales, provided it has been done in a valid and robust way to prevent, or at least reduce, the risk of a successful claim that may be made after you have passed.
Contact our friendly team today to book your free Will review and gain peace of mind for you and your loved ones.
Conclusion
If you are considering the exclusion of any persons from your Will and, in particular, the exclusion of a spouse, civil partner, or child, you should seek legal advice from us here at Redwood.
Depending on what it is you are trying to achieve, exclusion may not be the best course of action for you and your beneficiaries. We can provide expert legal advice and run you through your options to help you make an informed decision.
Frequently asked questions – how to exclude someone from your Will
Should I mention the disinherited person by name in my Will?
You should always name the person you wish to exclude, including their full name and relationship to you. This removes any ambiguity and makes it clear that the omission is intentional, not an oversight. It’s also important to create a Letter of Wishes, which is a separate statement confirming your reasons for disinheriting someone.
Should I leave a token gift?
Leaving a small sum of money to a beneficiary, rather than disinheriting them altogether, shows them that they haven’t been forgotten and can discourage them from contesting your will. Not everyone chooses to do this, but it is worth considering to strengthen your position. Discuss it with your Estate Planner to decide what’s best for your situation.
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