I want to remove a relative from my will, can they contest my will?
In short, yes they can. What you choose to include in your will is a very personal decision and the document should be carefully worded to make your intentions clear and ensure your final wishes are carried out.
What should I consider?
As Private Client solicitors, we are aware of complex family dynamics and understand that you may want to exclude a specific individual (i.e. family member) from being entitled to anything in your will. We appreciate the sensitivity of excluding someone when you make a will and the many personal reasons why you might come to this decision. Whilst our duty is to carry out these instructions, it is important for you to be fully informed about any grounds for an excluded individual to contest and to make a claim following your death.
Who can make a claim on my will?
The Inheritance (Provision for Family and Dependants) Act 1975 sets out who may make a claim against the deceased’s estate. A claim can only be made by any of the following individuals:
- Spouse or civil partner of the deceased;
- Former spouse or civil partner of the deceased (unless the claimant has re-married or entered into a civil partnership with someone else);
- Anyone who lived with the deceased as a spouse or civil partner for the two years before the deceased’s death;
- A child of the deceased;
- Anyone who was treated as a child by the deceased; and
- Anyone else who was being maintained by the decease before their death.
What does the Court have to consider in determining a claim?
Whilst any of the above individuals may decide to make a claim against your will, whether they are successful or not is up to the Court, which will need to consider the following grounds:
- The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
- The size and nature of the net estate of the deceased;
- Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
- Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
Dignam-Thomas and Bebbington v McCourt and Another (Inheritance Act 1975) [2023] EWHC 546 is an example of when two claimants who were left out of their deceased brother’s estate, successfully made a claim by relying on the provision of maintenance.
Not long before that case, Higgins v Morgan and others [2021] EWHC 2846 (Ch) is another example of a claimant succeeding in their claim. Unlike Dignam-Thomas and Bebbington v McCourt, in this case the claimant was biologically unrelated to the deceased, who was his step-father. The Claimant was successful on the grounds that he was financially dependent on the deceased. The Court took into particular account the strength of their relationship.
However, it also important to recognise that not all cases are successful. For example, in Miles v Shearer [2021] EWCH 100 (Ch), the Court rejected the claims of the two adult daughters of the deceased. This was based on the fact that neither daughter was financially dependent on the deceased and also took into account the strained relationship between the deceased and his children. Prior to his death, the deceased declared in writing that he did not want his daughters to benefit from his estate on death. The Court felt obliged to take this into consideration.
Our advice
Whilst it may cause concern to know that someone you do not want included in your will may nevertheless have a claim, our solicitors can guide you with safeguarding measures that can be carried out at the time of preparing your will. However, as we all know, relationships can change, and you may at a later point decide you want this/these individual(s) to be included in your will. We therefore advise that you update your will after any major event in your life to ensure that the document reflects your true sentiments and intentions.
If you have any queries about anything discussed in this blog, please do not hesitate to contact [email protected].