How can I minimise the chance of a claim against my estate?
In England and Wales you are free to make a Will directing who should receive your property and other assets (your ‘estate’) following your death. This is an important right but it does have limits. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to make a claim against an estate if they think that they have not received ‘reasonable financial provision’. Even if such a claim ultimately fails, simply dealing with it will significantly increase the cost of administering your estate, so it is better to anticipate the problem before it arises and to take steps to minimise the risk.
The 1975 Act permits claims by:
- a spouse/civil partner or former spouse/civil partner who has not remarried;
- a surviving cohabitee who was living, as the spouse/civil partner, in the same household as the deceased at the date of death and had done so for two or more years prior to death;
- a child of the deceased (including adopted children);
- a person treated as a ‘child of the family’, but only if the deceased was in a marriage or a civil partnership at the date of death; and
- any other person who was being maintained by the deceased immediately before his or her death.
A common request when drafting Wills is to exclude an estranged child. In that case, it is important to consider the risk of a claim being made. Solutions include:
- Leaving the child something in the Will, despite the estrangement. If they receive something, even if it is limited, they may be less likely to want to make a claim. And if they do make a claim there is a better chance to persuade the court that reasonable financial provision has been made.
- Supplementing any limited provision with a ‘no contest’ clause, stating that if they make a claim they will forfeit their entitlement under the Will. This should act as a deterrent.
- Writing a letter explaining why the child has been excluded or their entitlement reduced. This would not stop a claim being made, but the court can take it into account when deciding whether the Will makes reasonable financial provision.
In addition, if there is any risk of the Will being challenged on the grounds of a lack of mental capacity when the Will was made, we recommend obtaining a capacity assessment by a medical professional before making the Will. This makes the chance of a successful claim less likely.
The freedom to decide who inherits our estate is an important right. It is, however, crucial to understand the restrictions on this freedom so that we can reduce the risk of leaving a potential problem for our loved ones to deal with after we are gone.
If you would like to discuss this further, please contact Nicola Hillyer on 01892 506014 or at firstname.lastname@example.org