Think you can do what you like in your Will? Think Again!


    When thinking of making a Will, most of my clients assume that they can leave their estate to whomever they please and in any fashion they like.  Generally speaking, this is the usually the case.  After all, the law relating to Wills will try to uphold the principle of ‘Testamentary Freedom’ in as many cases as possible.  As it suggests, this means that in instances where any type of dispute or challenge arises in relation to a Will after someone has died, the Courts will usually try to follow the wishes of the Testator, the person’s Will in question, as closely as they can when making judgement.

    So, what is an example of the type of thing that you may not wish to do in your Will, which may lead to your Will being challenged or disputed, and how can you ensure that such disputes won’t arise after you have died?

    I see a surprisingly high number of clients who wish to exclude one of their children from any inheritance after they have died.  Sadly, this often follows a falling out long ago between parent and child and the breakdown of their relationship.  In such cases, I advise the client to think very carefully about excluding a child, principally because the law allows a child of the deceased to make a claim against a parent’s estate under a piece of legislation called the Inheritance (Provision for Family and Dependants) Act 1975.

    If a child who was excluded from a parent’s Will were to make such a claim, the Court would consider all types of factors, although it is usually the case that the Court does not look too favourably on such claims from adult children who can ‘stand on their own feet’ financially speaking, mainly because of their wish to uphold ‘Testamentary Freedom’, as mentioned earlier.  Even so, if an aggrieved child were to pursue the claim through the Courts, however slim their chance of being successful in that claim, the Executors of the Will would have to be a party as a defendant and this can lead to the Estate in question being dissipated in costly legal fees.

    I had just such a case a few years ago.  Not only did the estate and family concerned incur legal costs of in excess of £50,000, it is the emotional impact of going through such an experience that is all the more costly in my view.  Inevitably, the aftermath is that siblings never speak again for the remainder of their lifetimes.  This is the last thing clients, as parents, would wish for after they have gone.

    This is just one example of why it is so important to get sound legal advice from an experienced professional when making your Will.

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