I recently read and thoroughly enjoyed the script for “Harry Potter and the Cursed Child”, the hugely successful stage play that picks up where JK Rowling’s Harry Potter series left off. I wouldn’t dream of spoiling things for ‘Potterheads’ (Harry Potter fans, for those in the know) by giving away the plot, but I think it is fair to say the title gives away the fact that the story includes a ‘cursed child’ – a black sheep in the family.
Sadly, in some families there is a child who does not have a good relationship with his or her parents, for whatever reason. When those parents are making their wills, they may wish to exclude that child, leaving them no entitlement from their estates. Unlike many other countries, all people making wills under England and Wales law have what is known as “testamentary freedom”, meaning you can leave your estate to whomever you wish.
There is no legal requirement to leave gifts from your estate to your children or even to your spouse or civil partner. That said, any excluded family members may wish to contest the will, and this means there are a number of factors you should bear in mind, should you be considering leaving a child or other family member out of your will.
1 The Inheritance (Provision for Family and Dependants) Act 1975 (the Act)
Under the Act, it is possible for certain categories of family member to make a claim for “reasonable provision” from the estate if they feel they have not been adequately provided for. The categories of potential claimant include the spouse or civil partner of the deceased, any former spouse or civil partner, children and anyone else financially maintained by the deceased. It is necessary for any claim to be brought within six months of the grant of probate in the estate (although in some circumstances it is possible for claims to be made outside of this deadline).
2 Children who are “treated as children of the family” are entitled to claim
It is not just blood relatives who are entitled to bring a claim. To re-visit the Harry Potter scenario, consider Harry’s position in the Dursley family. After Harry’s parents were murdered, he was brought up by his aunt and uncle, the Dursleys. Harry was treated very badly by the Dursleys, but nonetheless they fed and clothed him and provided a roof over his head. As such, had the Dursleys died and excluded Harry from their wills, he would have potentially been able to bring a claim against their estates, as he was treated as a child of the family.
3 Claimants not financially dependent on the deceased may succeed
Recent caselaw (such as the case of Ilott v Mitson, which my colleague Roman Kubiak has previously blogged about) has shown that a child who brings a claim against an estate need not have been financially dependent on the deceased, in order to succeed. This means that even if you are completely estranged from the child or family member you wish to exclude from your will, they may still bring a claim and could still be successful.
4 Ensure your reasons for excluding a child are clearly documented
When you make your will, your solicitor will ask you for details of your family circumstances. If you wish to exclude a child or other family member from your will, your solicitor will ask you for detailed reasons for this decision, which should be documented in writing in a note or letter. It is sensible for any note or letter recording the reasons for your decision to be placed in storage with your will, so it is readily available should any claim be brought when you pass away.
5 Consider leaving a legacy to reduce the risk of a claim
When a claim is brought against an estate, this can be both upsetting for the family at what is already a difficult time, and expensive for the estate. To reduce the risk of a claim, you may wish to consider leaving a legacy to the child or family member you wish to exclude.