Can you exclude specific individuals in your Will?

Individuals in England and Wales are able to distribute their estate how they wish. This is commonly done via including their wishes into their Will. Sometimes this can include the exclusion of specific individuals from inheriting from their estate. 

There is a common assumption that this can be done without repercussion. However, there is a key piece of legislation called the Inheritance (Provision for Family and Dependants) Act 1975 which allows certain individuals to challenge a Will should they feel that it does not make reasonable financial provision for them.

The 1975 Act 

This sets out who can apply, and the time limits for the applications. 

The categories of applicants include:

• Spouses or civil partners of the deceased
• Former spouses or civil partners of the deceased who have not remarried
• Children of the deceased including adult children and adopted children
• Persons treated as children by the deceased including stepchildren
• Any person who was maintained wholly or partly by the deceased immediately prior to their death 

The time limit for bringing a claim under the 1975 Act is within 6 months of the Grant of Representation was made. There are circumstances in which the Court can extend the time limit for making a claim. 

Case of O’Herlihy v Taylor

In the case of O’Herlihy v Taylor and another, the High Court refused the claimant permission to bring his claim more than 6 months after the Grant of Probate in the estate of the late Mr Taylor. The estate was valued at approximately £38.5 million and the deceased died in June 2019. The claimant, who was a stepchild of the deceased during the period between 1995 and 2004, brought his claim almost 5 years out of time. Despite the claimant bringing the claim out of time, permission was also refused due to the claimant having no real prospects of success. The Court found that the claimant’s own earning capacity was sufficient to meet his appropriate standard of living and that the deceased did not owe him any obligations. 

The importance of clear documentation 

Whilst the claim was unsuccessful in this case, it is important to highlight that claims under the 1975 Act can exist and can be successful. Planning is crucial. If parents intend to exclude children from inheriting any or some of the inheritance, it requires consideration and careful documentation should be kept explaining the reasons why. 

To mitigate the risk of a claim being successful, there are steps which can be taken. For example, a Will should be well-drafted and clear, and a letter of wishes explaining the reasoning can accompany this. These steps can ensure that when an individual passes, misunderstandings are and disputes are prevented. Litigation is costly and can be an emotional process.