Leaving Someone Out of a Will

The basic principle in the law of England and Wales is testamentary freedom: you can leave your assets to whoever you wish, including friends, charities, or unequally between your children, and you have no automatic legal duty to provide for any particular relative.

The main limit on this freedom comes from the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain categories of person to apply to the court for reasonable financial provision from an estate if they believe the will, or the rules of intestacy, do not provide for them adequately.

Claims under the 1975 Act can be brought by a spouse or civil partner, a former spouse or civil partner who has not remarried, a child of the deceased, someone treated as a child of the family, or anyone who was being maintained, wholly or partly, by the deceased immediately before their death.

A claim does not automatically succeed just because someone falls into one of these categories. The court considers factors such as the applicant's financial needs, their relationship with the deceased, the size of the estate, and any obligations the deceased had towards them.

If you plan to leave out someone who might fall into one of these categories, particularly a spouse, child, or financial dependant, it is worth taking professional advice on the potential for a claim and how best to structure your will.

Writing a separate letter of wishes explaining your reasons for excluding someone can be useful evidence if the will is later challenged, since it helps show your decision was considered and deliberate rather than accidental or the result of undue pressure. This letter should be kept safely with your will.

Rather than leaving someone out entirely, some people choose to leave a smaller, token gift, which can sometimes reduce the strength of a later claim by showing the person was considered. Others use trusts to provide for someone in a controlled way, for example if there are concerns about how a gift would be used.

There is no guaranteed way to prevent a claim entirely, but clear, well-documented reasoning, combined with proper professional advice for anyone in a higher-risk category, gives your wishes the best chance of being respected.

A common mistake is assuming that simply not mentioning someone in the will is enough to make the intention clear. It is generally better to state expressly that a person has been considered and deliberately not provided for, since silence can look accidental and may weaken the evidence that the decision was intentional.

Another mistake is relying on a verbal explanation given to family rather than putting reasons in writing, since memories of a conversation are far weaker evidence in court than a signed and dated letter of wishes kept with the will.

Because a successful 1975 Act claim can override the wishes expressed in a will, this is one of the areas of will-writing where professional advice is particularly valuable, especially where you plan to exclude a spouse, civil partner, minor child, or someone who was financially dependent on you.

A solicitor can help assess the realistic risk of a claim given your family circumstances, suggest ways of structuring gifts to reduce that risk, and ensure any letter of wishes is drafted in a way that will carry real weight if it is ever needed.