• Rachel Harding

Are you concerned about someone inheriting part of your estate against your wishes? What can you do?

If you are concerned that somebody, such as an estranged partner or child, may benefit from your will against your wishes, you must consider including a non-provision clause in your will. When and why would you include a ‘non-provision clause’ in your will, what does it actually achieve and can it be contested?

Over the years, we have written many non-provision clauses into clients’ wills – it’s actually a fairly common way of taking steps (as far as is possible) to ensure that those you do not want to inherit under your will, don’t.

When contesting a will, certain groups/categories of people are much more likely to successfully bring their claim to court : for example children, spouses and the survivor of a co-habiting couple. Just because somebody falls into one of these categories, however, does not mean they would be successful in contesting your will at court. Ultimately, it would be down to a judge to decide whether the Claimant had a case and, broadly speaking, the person contesting the will usually has to show that they were financially dependent on the deceased before their death, had been promised something they did not ultimately receive or did not receive as much inheritance as they were expecting. Although we have testamentary freedom in the UK, i.e. we can leave our estate to whomever we wish, the Inheritance (Provision for Family and Dependants) Act 1975 states that we must provide reasonable provision for our spouses and children.

For example, if you are separated – but not yet divorced – from your spouse, and feel strongly that you do not want him/her to inherit under your will in the event of your death, you could include a non-provision clause stating, specifically, that you do not wish to make any financial provision for your estranged spouse under the terms of your will. You could back this up with a letter of wishes, stored with your will, explaining the reasons for your decision. Whilst this would not be binding on a judge if your spouse were to contest your will in court, it would certainly go some way to demonstrating that you did not intend for him/her to inherit (i.e. it was no accident/oversight that he/she was left out of your will) and may decrease the chances of him/her making a successful claim.

If you’d like to know more about writing a will with a non-provision clause included in it, or if you are contemplating contesting a will yourself, please do not hesitate to get in touch for a no-obligation chat. Call us on 07790 041648 or contact us here.

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