Can I exclude a family member from inheriting any part of my estate?

As with so many things, there isn’t a completely straightforward answer, but there is a lot you can do to affect the outcome.  The first thing to consider is having a will:  if you die without a will, the law decides who will receive your estate after your death.  The rules that govern this are known as the intestacy rules, and essentially the rules provide for your estate to pass to your closest relatives.  You can find more information about the intestacy rules here What are the intestacy rules?.

If you don’t have a will, and the person you want to exclude would inherit under the intestacy rules, one of the easiest things you can do is draw up a will benefiting other people or organisations such as charities.

Can I leave my estate to anybody?

In principle, you can leave your estate to whomever you wish and this is known as testamentary freedom.  That means that, under the law of England and Wales, each person is free to decide who will receive a share (or all) of their estate.  Apart from the intestacy rules where there is no valid will, there are no forced heirship rules in England and Wales which apply in many other jurisdictions including Scotland, many civil law countries in Europe including France and Spain, and many Muslim countries.  If you have a strong connection to any of those jurisdictions, you should take specialist advice about the extent to which you are able to leave your estate outside of those rules.  This is a complicated area of international law and hinges on the question of your domicile.  You can find more details about that here who is considered non-domicile and how does it impact on inheritance tax?

Assuming you are domiciled in England & Wales, under English law you can leave your estate as you wish, subject to one exception.  This is where somebody believes that you have made insufficient provision for them in your will (or under the laws of intestacy), and they make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act).  They can make a claim where you have made no provision at all, or where you have left them some of your estate but they feel it’s not enough.

So who can claim against my estate under the 1975 Act?

Spouses or civil partners may claim, as may former spouses or civil partners who have not subsequently remarried or entered into another civil partnership, cohabiting partners (who have lived with the deceased for at least two years prior to their death), children of the deceased and anybody treated as a child of the family, and finally anybody who was wholly or partly being maintained by the deceased immediately before their death.

How much money could someone receive in a claim under the 1975 Act?

It depends on what type of claimant they are, the size of your estate, the identity of other beneficiaries and/or claimants, and a range of other factors.  Spouses or civil partners are in a special position and subject to other considerations could expect to receive provision in line with what they could expect on a divorce, but for other claimants it’s based on their maintenance needs as well as the other factors.  This article gives more information on claims could somebody make a claim against my estate under The Inheritance (Provision for Family and Dependants) Act 1975?

Can adult children make a claim on an estate under the 1975 Act?

As they are your children, they are entitled to bring a claim, and at that point, it would be a question of balancing their resources and needs against those of other beneficiaries.  If you are providing support to them that would strengthen their argument for provision.

I have cut off contact with my daughter and haven’t spoken to her for years.  Does that mean she can’t make a claim on my estate under the 1975 Act?

The recent case of Howe v Howe is an example of a father who excluded his daughter from his will, and believed she was “grasping”, “useless”, “druggy” and “lazy”.  She made a claim for reasonable financial provision and despite the fact that they had been estranged for a long time, her health needs (which prevented her from working) meant the court made an award.  It amounted to less than 10% of the estate, and was structured so that she didn’t receive it outright (it went into a trust to protect her entitlement to benefits).

Some years ago, the case of Ilott v Mitson went as far as the Supreme Court.  This was a case where there had been decades of estrangement, no provision by the parent, and again the claimant child was on benefits.  The courts were split on the decision: the court at first instance awarded the daughter £50,000, the High Court removed the award, the Court of Appeal awarded £143,000 , and the Supreme Court reinstated it the original award of £50,000.  The mother in this case had given detailed information to her solicitor about why she wanted to exclude her daughter, but provision was still made.

What can I do to reduce the risk of a claim against my estate?

• If you are thinking about excluding someone from your will, consider whether there are any possible ways by which that person might claim that you are providing for them.  This does not simply include providing an allowance to them. It could mean allowing them to live in a property you own rent-free or for a reduced rent or assisting with the payment of their children’s school fees.  Could you make any changes to current arrangements?
• Consider a small legacy, possibly in conjunction with a no-contest clause.  These clauses allow for someone to be left a legacy, which is forfeit if the person decides to make a claim against the estate.  No-contest clauses deter any would be claimants, but cannot prevent a claim.  The legacy needs to be sufficiently large (in the context of your estate, and the other people for whom you need to provide) for the person to decide that the uncertainty of litigation may not be worth the risk of losing their legacy
• Leave your estate on a discretionary trust.  This gives your trustees discretion to decide who shall benefit from your estate (from a group of pre-selected people or classes of people). It is normal practice to leave a letter of wishes to your trustees outlining who should benefit from the trust and why.  This gives the trustees of the trust the flexibility to seek to settle any potential claims earlier, by exercising their discretion, which can in the long run save significant fees involved in any potential litigation
• Whichever route you take, set out clearly any reasons for excluding the person (this can cover anything from having made a substantial lifetime provision to them, to preferring other people/causes, to wanting to provide for a disabled child).  The courts are more likely to respond to positive choices rather than negative reasons but setting the position out (eg in a side letter) might provide a sufficient explanation to the person and avert a claim.

Conclusion

If you are seeking to exclude someone from your will, it is important to take specialist advice to ensure that all considerations have been taken into account, to give your executors the best chance of beating, or altogether avoiding, any claims which might be made against it.