Protecting your assets and avoiding disputes after death.

Sep 28, 2020

There are two certainties in life: death and taxes. Most people plan for the former by writing their Will.

Your Will clearly sets out who will inherit your estate after the sad event of your death, naming your chosen beneficiaries and the lump sum or possessions each beneficiary will inherit. You appoint your executors in your Will (usually family members), and trust that they will distribute your estate in accordance with your wishes. Your thoughts of what else might happen when you die often end there. It is a commonly held assumption that you can disinherit a person in your Will simply by not naming them as a beneficiary.

This is not always the case.

Under the Inheritance (Provision for Family and Dependants) Act 1975 there are categories of individuals who may be eligible to make a claim to your estate when you die – even if they are not a named beneficiary. These are:

  • A current spouse or civil partner
  • A former spouse or civil partner who has not remarried and who has not received a final financial settlement following the breakdown of the marriage or civil partnership
  • Any person who, during the two-year period immediately before the date of death, was living in the same household in the manner of a spouse or civil partner
  • Any of your children including illegitimate, legitimated and adopted children of any age
  • Any person you treated as a child of your marriage or civil partnership (i.e. your step-children)
  • Any person not included above who was maintained by you immediately before their death, otherwise than for valuable consideration – i.e. anyone else who was not your paid domestic staff

Classic examples of individuals who fall into these categories and might raise claims include: an unmarried partner claiming an interest in the property they shared with the deceased, an estranged adult child of the deceased claiming an equal inheritance to that of a sibling or a step-child claiming they should not have been overlooked even where they have financially benefitted from biological parents.

Conversely, common reasons to disinherit a family member or dependant might include an adult child already given large sums of money by you in your lifetime or a strained relationship with a family member who has poorly managed or owed you money over the years. Your reasons to disinherit may simply be that a family member or dependant is already financially successful in their own right and you seek to benefit another family member more favourably. Whatever your reason, it is important that you consider it carefully at the same time as you make your Will.

To protect your estate from an individual who falls into one of the categories of the 1975 Act, you should consider producing a detailed witness statement setting out why possibly expectant individuals are not named in your Will and any discussions you have had about your decisions that they will disinherit. If a Court claim is then issued after your death, your witness statement will be used as evidence in your defence, explaining to a Court in your own words that your decision not to include benefit the Claimant was intentional and that you do not wish for them to inherit.

By preparing your statement in advance, should the worst happen and your Executors are left dealing with a legal dispute, they will be able to present your defence statement to a court without needing to draw assumptions on your reasoning. Preparing a statement before your death is not a cast iron guarantee that the Court will decide not to give a part of your Estate to someone left out of your will. But it does give you an opportunity to persuade a Court to give weight to your statement when considering whether it should give some of your Estate away. Your advanced planning will also support your executors with the burden of preparing and dealing with a defence at a time when they are already dealing with your probate and are grieving your loss (where close family members are your executors).

We recognise too that your Will and decisions on inheritance might change as your circumstances change. For your statement to maintain the level of forcefulness wanted in a Court, it is sensible to renew it on a reasonably regular basis. This will demonstrate that your views have not changed since the initial statement made, or if they have – why they have. For example, a Will made when you are 50 which leaves out an adult child because they severely disappointed you would need to be revisited a decade later confirming you remain disappointed and those circumstances have not changed. Conversely, a Will made when you are 70 would need the statement to be revisited every 3-4 years given your progressing age.

If you need advice or assistance on a problem relating to the above then please contact us on drteam@herrington-carmichael.com

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter. 

Annabelle Randell 

Solicitor, Disputes and Claims  

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