No matter what size your Estate is, one of the most important documents you will ever create is your Last Will and Testament. It is only through a valid and legal Will that you can ensure that your assets will be handled and your wishes will be followed as you had envisaged they would when you pass away.
However, life’s journey can be unpredictable and your circumstance and wishes can change over time, including your desired inheritance provision for 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.
So, just how easy is excluding someone from your Will?
It actually isn’t as complicated a process as you might imagine, although emotionally excluding someone from your Will could be a difficult decision. We would always recommend that you seek 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 them from your Will. This should be created as a separate document, signed and dated by you and kept with the Will. Do not attach it to the Will as this can invalid it.
4 Reasons to Disinherit someone from your Will
While we said that excluding someone from your Will is not a complicated process, it is 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.
It is important to understand how to accomplish disinheriting someone from your Will and the following 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. Now you are married you may well wish to ensure that your spouse is now a beneficiary, if not the only person who is to inherit your Estate!
You may also have had children prior to getting married from a previous relationship and want to ensure they are provided for from your Estate should you die unexpectedly.
The simplest way to resolve this issue is to draft a new Will, as a new Will automatically supersedes the old one. To avoid the potential for challenges in the future, we would recommend that if you have previously told the beneficiaries of their inclusion in your old Will, then perhaps 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 remain 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 re-marry could mean that any children you have from a prior relationship receive less or even none of the Inheritance you would have wanted then 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 help and 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 for FREE by Jasmine Lambert, our qualified and experienced Chartered Financial Planner.
Reason 4: Estrangement
Sometimes people fall out. Sometimes they don’t fall out, the relationships just dwindle and the bonds that bound them years ago no longer exist. 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 usually only applies to a child or 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.
Thanks to the Testamentary Freedom in England and Wales laws, you have the right to name any beneficiaries or exclude anyone from your Will. However, The Inheritance (Provision for Family and Dependants) Act 1975 also allows eligible individuals to make a claim against your Estate on the grounds that you have not been left reasonable provision for them financially.
Potentially eligible persons who can claim against the deceased’s Estate include:
- A spouse or civil partner
- A former spouse or civil partner (provide 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 step-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)
Conclusion
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.
If you are considering the exclusion of any persons from your Will and in particular the exclusion of a spouse, civil partner or to exclude a child, you should seek professional 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, and our experts will share their knowledge of all of the options, risks and opportunities available that you will need to make an informed decision.
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