In this country we have ‘testamentary freedom’. In other words we are supposed to be able to make the will we want to and leave our estates to whom we choose. However, the law is not that straightforward. For example, under the Inheritance (Provision for Family and Dependents) Act 1975, certain classes of persons can claim from an estate if they can show there has been a failure to make “reasonable provision” for them. The class includes spouses and this in turn includes estranged and some ex-spouses. It also includes children, certain cohabitees and financial dependents.
It is not possible simply to bar a claim under the Act or other claims or challenges within the will. However, it is possible to include gifts which are expressed to be forfeit if the specific beneficiary of such a gift challenges the will or makes a claim on the estate.
Forfeiture clauses have not always been regarded as acceptable. However, if correctly expressed they can work. From a practical point the legacy must be attractive enough for the disgruntled beneficiary to prefer to take the legacy rather than take the risk of losing it by pursuing a claim or challenge. A modest ‘bird in the hand’ being worth more than a possible ‘brace in the bush’! Of course it is very difficult when making a will to judge the likelihood of claims or challenges arising and or how successful they may be. Much depends on the circumstances actually prevailing at the death of the testator.
Challenges to the validity of a will should be capable of being knocked on their head at the outset, provided the will is made with a suitably qualified and experienced solicitor.
There are certainly more claims and challenges to wills made these days as more people have money and property to leave, and an inheritance can make a very significant difference to someone’s life given the present economic climate. Therefore, if you had wanted to exclude someone from your will who could be eligible to claim, perhaps some kind of legacy combined with a forfeiture clause might be a good alternative strategy.
For further information on any of the issues above, please contact a member of our Wills & Wealth Planning team on 01625 442100.