In the UK for the large part, testators retain testamentary capacity, meaning they can bequeath their estate to whomever they intend to provided they leave a valid will, this is unlike parts of Europe which mandate the distribution of wealth to children.
The freedom to dispose of one’s estate without the interference of statutory law has been a principle of our common law approach for a very long time. However, due to the changes in the ‘social contract’ which has stemmed from the changing structure of families, changing perceptions of social justice and preventing an extra welfare burden, there has been some conditions put in place since the 1930s where dependents have been involved:
- Inheritance (Family Provision) Act 1938 – gave very limited powers to the court to make provision for spouses and children who couldn’t maintain themselves where a will didn’t make adequate provision
- Intestate’s Estate Act 1952 – extended the 1938 Act to apply to intestate estates
- Family Provision Act 1966 – broadened the scope a little more
We now have the Inheritance (Provision for Family and Dependents) Act 1975 which is restricted to England and Wales and applies to those who die having considered the UK to be their home or the UK government determines that the UK was their home on their death for inheritance tax purposes; this is known as one’s domicile.
Because of this act there are up to seven classes of potential claimants to one’s estate should they make no provision for them in their will, or if the laws of intestacy make no provision for them either.
- The spouse or civil partner of the deceased; this includes those going through a divorce before the decree absolute is granted.
- A former spouse or civil partner who has not remarried or formed a subsequent civil partnership; this won’t include those who as part of their divorce expressly bar a future I(PFD)A claim.
- A child of the deceased; includes adult children.
- A family of which the deceased was the only member apart from the claimant
- Any person who was being maintained wholly or partly immediately before the deceased’s death; provided it was not part of a commercial arrangement.
- Any person who was at the time of the deceased’s death, and during the whole of the preceding two years, was living in the same household ‘as the spouse’ of the deceased; there is no definition of what ‘as the spouse of the deceased’ means and is dealt with by the courts on a case by case basis.
- Any person who was at the time of the deceased’s death, and during the whole of the preceding two years, living in the same household ‘as a civil partner’ of the deceased; approached in the same way as point 6.
Does this defeat the purpose of a will and your testamentary freedom? Not necessarily, as the court needs to balance your intentions with the interests of those legitimate beneficiaries and the available assets to satisfy any claims. The principle of testamentary capacity still applies and because of this the courts will consider several factors before approving such a claim i.e. the financial resources and needs the claimant is likely to have.
To strengthen your wishes simply omitting someone is not always enough but rather you’ll need to make a specific exclusion in your will. Otherwise, it could be challenged as being a mistake and thus the claimant being considered an equal heir.
Finally, try to avoid saying anything negative in your will about any specific people – especially as these wills become public documents. Rather focus on the positive reasons for which you have decided to distribute your estate in the manner you have.
Should you want to leave any sentimental letters or words of wisdom or even rebukes, leave them as a separate document and certainly not attached to the will itself.
Mohammad Uz-Zaman is the Director of ADL Estate Planning Ltd. He is a private client wealth manager who holds accreditations across regulated financial advice and estate planning. He holds a graduate and post-graduate qualifications in addition to various professional qualifications. He is also an Associate Member of the Society of Trust Estate Practitioners (STEP).