You have the right to leave your money and possessions to whomever you choose, however there is a risk that some close family members could challenge your Will after your death if they have been left out.
When writing your Will, you have the right of testamentary freedom, meaning you can include or exclude anyone you wish.
However, if you exclude someone who depends on you financially, you may leave your estate open to a legal claim.
The Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 gives those who have relied on someone for their upkeep the scope to bring a claim if they have not been provided for after that person’s death.
A spouse can make a claim against the deceased’s estate if they have not been left reasonable financial provision, which is considered to be sufficient money so that they do not live in poverty.
Your executors will be legally bound to defend this action to protect the estate’s assets, which could mean that your estate will have to pay substantial legal expenses. For this reason, it is important to try and address the situation when making a Will.
Why leave your spouse out of your Will?
The first point to look at is why you wish to leave your spouse out of your Will. You may be contemplating a divorce or alternatively, simply feel that they already have sufficient money to provide for their own needs. You may want to leave your estate directly to your children, to avoid the risk that your spouse could either spend the money or lose it or leave it to someone else when the time comes.
If you believe that your spouse does not need money from your estate because they have enough wealth of their own, it is important to discuss this with them so that they are prepared for what will happen and can raise with you any issues they have. While this does not guarantee that a claim will not be made after your death, it is likely to substantially reduce the risk.
If you would like your spouse to have use of your assets during their lifetime, but without the risk that they are lost, for example in care home fees or by being left to a third party, you can leave them in trust. For example, you can leave your spouse a life interest in a property you share so that they can stay there for as long as they want. When they finally leave, the property would pass in accordance with your Will, often to children.
You can also leave your capital in trust so that your spouse can have an income. On their death, the capital would again pass in accordance with the terms of your Will.
Who else can make a claim against an estate?
Others who could also potentially bring a claim against your estate include ex-spouses who have not remarried, children, people you have treated as your children, cohabitees and others who depend on you financially. While a spouse may be entitled to reasonable provision, other dependants may be entitled to reasonable maintenance.
Reducing the risk of a claim to your estate
While it is not possible to eliminate the risk of a claim being made against your estate, careful estate planning can substantially reduce the risk. Our Wills lawyers can work with you to identify any potential difficulties and suggest ways of minimising the likelihood of a claim being made.
Make a free, no obligation enquiry now
We have in-depth experience of protecting estates for our clients, to ensure that their assets are left to those whom they wish to receive them.