In England and Wales, unlike other countries, a person can leave their estate to whomever they choose. Therefore, if you want to leave your whole estate to Charity and not to your spouse or children, you have every right, legally, to do that. This right is known as Testamentary Freedom.
Adult Child Claims
Associate – Estate & Trust Disputes Specialist
The Inheritance (Provision for Family and Dependants) Act 1975 allows for certain people to bring a claim against the estate if they can show that reasonable provision was not made for them under a Will or an intestacy.
The 1975 Act widened the scope for adult children to make such claims, albeit that they have to show a real need for maintenance from the estate. Therefore, if they are capable of earning a living and have no real mental or physical disabilities they would, you would think, find it difficult to mount a claim.
The long awaited and widely reported judgment from the Supreme Court of Ilott -v- Mitson has made people question if it is still worth writing a Will if the terms of that Will can be so easily overturned.
3 Ways You Can Protect Your Testamentary Freedom
If you are intending to omit a child from your Will, you should think very carefully about how you document your decision.
- Leave a Note - It is sensible to leave a note with your Will explaining your reasons for not leaving them anything. The note should be a true and accurate record of the reasons but should not take the form of throwing everything at it. It should be remembered that the Will may be made many years before the death (and Inheritance Act awards are subject to the facts at the time of the court hearing, not at the time the Will was made or even on the death). Therefore, just because you think, today, that your son or daughter is doing very well for themselves and does not need your help thank you very much, does not mean that this will be the case at the relevant time. If there has been a fall out, this should be documented, emotionally, and the reasons or perceived reasons given. The letter will not prevent a claim, but it will provide background as to whether leaving your child out of your Will is reasonable, which is the basis of the 1975 Act.
- Leave a Small Legacy - Some testators are encouraged to leave a small legacy rather than nothing. This shows that they have considered any moral claim that they may have and, again, can go some way towards indicating that you have left reasonable provision (in all the circumstances) for your child.
- Add a No Contest Clause - You can put a no-contest clause into your Will which states that if the legacy left to them is challenged, they forfeit the right to anything. Although not legally binding, it can have the effect of making the challenger think twice before taking the risk of losing whatever legacy they were left. This can particularly be the case if the legacy left to them is significant enough to make them think twice about challenging it.
It is important to appraise your will writer fully and comprehensively about your family background and family members, particularly if you are not intending to leave them anything, so that they can provide you with the best advice about how to prevent a challenge to your Will after your death.
We Can Help
At MW,our mission is “to make quality legal services accessible to everyone” including those who find themselves embroiled in a 1975 Act claim.
Our dedicated Estate and Trust Dispute Team are specialists in navigating the tricky waters of such claims to help ensure the best outcome for our clients. Our specialist lawyers have experience in helping both Claimants and Defendants to adult child 1975 Act claims and we are best placed to guide you through the process as quickly and painlessly as possible.