The dangers of excluding children from your will
2nd December 2016
A recent anonymous article in The Telegraph illustrates an increasingly common phenomenon, that of parents leaving a disproportionate share, even all, of their estate to one of their children and less, or none, to the others. Typically this may result from the fact that one adult child has looked after his or her parents (or indeed an uncle, aunt or neighbour) in their twilight years, possibly to the exclusion of the others, or is regarded as being more financially needy.
There may be good reasons for leaving an estate unequally between children or excluding one or more of them. But a will, perhaps made in the last few days of an elderly person’s life, leaving the whole estate to one child, nephew, niece, etc., and not equally to all in the relevant ‘class’ is a fertile breeding ground for litigation. It could be challenged on the grounds of lack of capacity, coercion or forgery; a claim under the Inheritance Act for provision from the estate could be brought; even a claim that any earlier will was a ‘mutual will’ (a contract) and could not be lawfully revoked.
Legal advice – always important when making a will - becomes all the more so in such circumstances.
Here are our top nine tips on how to go about minimising the risks and costs of a claim:
- Take professional legal advice. A will written out on a standard pro forma bought in a shop by the sole beneficiary and witnessed in front of two of that person’s friends is a recipe for disaster.
- Make a will! The intestacy provisions treat children equally.
- Leave the original will with the solicitors who prepared it. It is less likely to ‘disappear’.
- Make it clear, perhaps in a separate letter of wishes left with the will, why the estate is being left as it is. This letter will be evidence, admissible in court, to explain your reasons.
- Those reasons should be factually true and reasonable. They need not be aggressive or confrontational. If one child has looked after you devotedly, and alone, then this may be all that needs to be said.
- You may be advised to submit to a mental capacity examination. Don’t be offended. Passing it could be enough to see off any future claim.
- If appropriate, tell those being excluded of the reasons at the time. They may understand better than they would after your death when confronted by the shock.
- Consider leaving anyone to be excluded something, even if it is token. This may neutralise any claim.
- For larger estates, consider a discretionary trust instead of a will. Challenging a trust after death is likely to be far more difficult.
No amount of precautionary action will prevent a claim being pursued by someone determined to do so. These guidelines will help to avoid the main beneficiaries of your estate ending up being the lawyers and the main legacy to your family one of expense and bitterness.
This blog is based on an article in The Telegraph http://www.telegraph.co.uk/women/family/parents-have-cut-siblings-will-deserve/
If you are thinking of making a will in such circumstances and wish to discuss them, contact John Melville-Smith, our contentious probate specialist.
+44 (0) 20 7725 8027
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