When deciding who would like to receive your estate after you die, you may want to leave someone out of your Will, this is called a Will exclusion. It could be a close family member such as a daughter or son, or even a spouse or ex-spouse. There are many different reasons you want to leave someone out of your Will, It could be that you have become estranged, or you don’t believe they are entitled to your belongings.

Excluding someone from your Will is not as easy as just not including them, you need to specify why you wish to exclude them to avoid it being disputed.

Will Exclusions in England and Wales

In England and Wales you are legally able to leave someone out of your Will. Not all countries allow this, for example, in France and Spain, you cannot exclude people from your Will. The law under forced heirship determines where your assets will be distributed; in England and Wales we have Testamentary Freedom. 

Testamentary Freedom gives you the ability to name anyone you want in your Will. Included in this can be any charities, organisations and individuals, regardless of their relationship to you.

Why can people who you leave out of your Will challenge it

The Law in UK and Wales – Act 1975 (Provision for Family and Dependents) states that adequate provisions must be made for your family.

If a Will is challenged, the courts will consider the following:

• Does the Will or intestacy make reasonable financial provision for the applicant?
• If not, should the court intervene to award further provision from the estate?
• If so, what type of provision is appropriate?

Who Can Challenge your Will

Under the act 1975, certain people can challenge your Will after you die.

These individuals are:

• Your spouse or civil partner
• Your ex-spouse or civil partner (providing they haven’t remarried or entered a new civil partnership)
• Someone who was living with you for the 2 years leading up to your death
• Your child or anyone who was treated as your child (such as a stepchild or a foster child)
• Anyone who was financially dependent on you before your death

If you have not specified why you have excluded any of the above people or persons, then they may be able to benefit from your estate after your death.

How is the best way to ensure people you leave out of your Will do not benefit

When you write your Will a lot of care is put into how you wish to divide your estate. If you do decide to exclude someone, this is not usually an easy decision, and you want to ensure your wishes are upheld. There are several ways to do this.

• Use a professional will writing company to ensure all the legalities are covered. If you write your own Will and do not specify in the correct manner or use the correct terminology how you wish to exclude someone it can be easier to contest. A poorly drafted will is less likely to hold up in court than one written by a professional.

• Someone who contests your Will also may say that you lack testament capacity (You are of sound mind). A professional will writing company such as Sovereign Planning will ask you to confirm testament capacity at the start of your appointment.

• Be specific about why you would like to leave someone out of your Will. If the Will is contested, then the courts will look for this. Also, you must be specific about why you are leaving your estate to others such as charities, friends etc.

• You can also set up a Trust alongside your Will. A trust can be used to specify beneficiaries after you die – however, they cannot be challenged in the same way that a Will can. For more information on trusts there is a helpful article on the Gazette. At Sovereign Planning we can advise you and help set up a trust if you wish. 

• The last way to ensure your Will is not contested is to inform the person you plan to leave out of your Will. It may not be an easy thing to do, but it will decrease the likelihood of them appealing against your wishes.

What happens is you haven’t made a will

If you haven’t made a Will then the rules of intestacy will count (See our What is intestacy blog for more details). You need to make a will to ensure your wishes are met. Will Exclusions are a technical and difficult area of law, and there are many considerations to take into account. At Sovereign Planning we are Will writing experts and can guide you every step of the way. Contact our friendly team.