More and more marriages end in divorce (as many as half) and we’ve seen more cases where people would like to exclude a family member from benefiting from their estate and in theory this is fine because we have principle called ‘testamentary freedom’ meaning we can leave what we like to who we like.
It does get a little more complicated though because our Will can be open to challenge. When it goes to probate, it becomes a public documents and aggrieved family members or beneficiaries have been known to challenge the Will.
It’s crucial that if you do intent to deliberately exclude someone from your Will you get professional advice from Philip Anthony Associates and we can talk you through the potential issues, and how we might overcome them.
A couple of important considerations we will talk to you about is whether the person you are excluding is financially dependent on you, in which case, if they can prove that they are, they may be able to overturn your Will and gain from your estate. This will no doubt affect the distribution of your estate and the people that you would like to inherit meaning they’ll get less than they expect or than you intent.
Additionally, a claim against your estate and your Will is likely to delay the distribution of your estate and could cause for funds within your estate to be used in paying legal costs.
There are a few things that we suggest when considering an exclusion and at present one of these things would to be to write a letter of wishes (a letter to be stored with your Will) which will explain your thoughts, feelings and wishes and when read out in conjunction with your Will (if necessary by the court), it will support your desire to deliberately exclude someone who might expect to inherit.
It’s important to remember that when you write your Will and the Letter of Wishes, you need to have the required capacity to do so. We can support you with the proper advice to help prevent claims and to ensure that if one arises, your documents are adequately prepared.