Client Guide: Excluding people when making a Will
Effect of the Inheritance (Provision for Family and Dependants) Act 1975
When you make a Will the overriding principle of law is that you have complete freedom to provide for your estate to be distributed in whatever way you choose. However, this freedom is restricted to an extent by the provisions of the Inheritance (Provision for Family and Dependants) Act 1975.
The idea of the Act is to ensure that those people who are dependent upon you up to the time of your death are provided for, even after your death, whether or not there is a Will.
The Act does this by allowing certain specified categories of people to make a claim against the estate if they believe that they have not received reasonable financial provision following the death. Such a claim must normally be made within six months of the issue of the Grant of Probate (or Letters of Administration) by the Probate Registry.
The six categories are as follows:
- The deceased's spouse or civil partner
- The deceased's former spouse who has not remarried, or former civil partner who has not yet married or entered into a new civil partnership
- Any person who, during the whole of the period of two years ending immediately before the date of death, lived in the same household as the deceased and as partner (either married or civil) of the deceased
- Any son or daughter of the deceased
- Any person who was treated by the deceased as a child of the family
- Other dependants, ie people to whose needs the deceased had been making a substantial contribution up to the date of death.
If the court considers that the person making the claim has not received reasonable financial provision then it has wide powers to set aside the terms of the Will and make such provision for the claimant as it considers reasonable.
The Act therefore has implications for a person making a Will if they intend to exclude anyone who falls into one of the categories or intend to provide only a small amount for such a person. Of course, in many cases it would be perfectly reasonable to make no provision at all for a person who falls within one of the categories because there is no degree of financial dependence. This may apply to adult children in some cases.
However, to avoid complications after your death and to try to ensure that the terms of the Act could not be successfully invoked against your estate, when making a Will you should consider making some provision to avoid a claim being made.