Guest blog from Estate Planning Consultant, Lisa Carr.
During the last few weeks a large number of my clients have been asking me about excluding close family from their Wills. I’m starting to think I may be a contentious Will magnet. But am I?
Being raised in a stereotypical loving family was the norm not so many years ago, but perhaps talking about family fallouts was simply more of a taboo? Serious relationship breakdowns seem more common. My business snapshot is echoed by research conducted by Stand Alone, a UK charity supporting those deliberately parted from relatives, suggesting that estrangement affects at least one in five British families. Quite a surprising statistic!
A contentious family situation has potential repercussions for estate planning and Wills that need consideration.
It is absolutely true that under English Law every adult individual has the “Testamentary Freedom” to make their Will in any way they wish – they are free to leave their estate to the friends, families and charities they choose. However, it is important to understand that whilst this is the case, the law – specifically the Inheritance (Provision for Family and Dependants) Act 1975 – means that certain categories of people are able to make a claim against the deceased’s estate if they believe that the deceased did not make an adequate financial provision for them. Spouses (even ex-spouses), children and anyone the deceased person paid money to on a regular basis may be able to claim. Deliberately leaving someone out of your will requires serious consideration of the possible consequences.
As an Estate Planner, making my clients aware of the risks and possible outcomes is so important. Although it is a very expensive and time-consuming court process for disgruntled dependants to make a claim, many choose to do so. Being armed with the facts is a priority.
Claiming against a Will is more common. In the first quarter of 2020 (January – March) there were 116 new contentious probate court proceedings in the Business and Property Court in London alone. There has been a steady increase in the number of cases, and in 2019 these were double those brought in 2016. The figures from Q1 of 2020 are on par with the record from Q2 in 2019. We will have to wait and see whether coronavirus has an impact on the numbers. My experience suggests that where there’s a second relationship people may choose to leave their estate to their current partner, leaving children from a previous relationship unhappy.
A side letter with your Will, explaining your reasons, can help ease the pain.
What does this mean for you, for example if you are estranged from an adult child? My advice would be to think about making a specific gift to your son or daughter, to acknowledge they exist and demonstrate they are not forgotten. I always advise writing a personal, sealed letter explaining your reasons to your executors. This can be painful to write. I can guide you with the wording, but the most effective letters are handwritten and come from the heart. It’s important not to include the letter as part of your Will, but it should sit alongside it.
So, whilst contentious probate is becoming more commonplace, there are sensible ways to try to avoid a challenge. Make sure you get expert advice from a qualified professional.
If you’ve been affected by any of the topics covered in my blogs, drop an email to firstname.lastname@example.org. I’d love to hear from you.