Can you avoid a claim against your estate?

With the number of claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“Inheritance Act”) increasing, it is imperative to consider ways to avoid such claims from succeeding. After all, when you make a Will, you want to ensure that your estate is distributed to your loved ones in the way that you wish and without the involvement of the court.

Certain categories of individuals are entitled to bring Inheritance Act Claims. They are a spouse or civil partner, former spouse or civil partner that has not remarried or entered into another civil partnership or a child, or anyone who immediately before the death of the deceased was being financially maintained either wholly or partly. Those eligible to bring a claim against an estate can do so on the following grounds:

They were not included in the Will;

• They were included in the Will but the share bequeathed to them is not adequate;
• The relationship between the deceased and the claimant began after the last Will was made;
• The Will is considered to be grossly unfair;
• The Will is not clear.

Unfortunately, with the Inheritance Act there is no absolute right to disinherit someone and as such, individuals should take preventative measures when making their Will to avoid any Inheritance Act claims made later from being successful.

There appears to be a rise in charitable legacies and from experience it would appear that there are a large number of individuals each year who wish to challenge such legacies. It would appear that the courts are reluctant to go against the wishes of a testator if one is able to show an existing link to a charity or if there is a reason for that particular gift. If an individual has made regular donations to a particular charity or charities then, the court is likely to find it reasonable that the individual would want to leave them a gift within their Will. If however, a charitable legacy is left but without any link to that charity, there is a possibility that an Inheritance Act claim bought to challenge the legacy may succeed.

If you are leaving out certain family members it would be useful to provide an explanation for the estrangement within your Will and also tell members of your family so that people are aware of your reasons. Failing to provide any such explanation could mean that a court could determine your decision to be unreasonable and award the estranged family member a proportion of your property.

If you leave someone out that is financially dependent on you then they are more likely to succeed then someone who is financially secure and as the court would consider less “needy”. If no provision is made for them then the court will have to make the decision as to whether their Inheritance Act claim should succeed and if so to determine what the award should be. It is therefore a good idea to instead leave something in your Will with an explanation as to why you are only leaving them that property and not more rather than excluding them from your Will entirely

By comparison, it is also a good idea to provide an explanation as to why you are leaving legacies to those contained within your Will. That way if an Inheritance Act claim were issued then this will assist the executor in providing an explanation to the court as to why the beneficiaries should not be deprived of their inheritance and what your wishes were as the testator.

Whilst there is no method that can be used to dis-inherit someone entirely the key appears to be providing as much clarity as possible during your lifetime and when making your Will so that in the event where an Inheritance Act claim is issued your executors will find it easier to defeat any such claims.