Don’t you forget about me… leaving someone out of your Will

Families and modern relationships can be complex and it is a simple fact that sometimes, for one reason or another, you might want to leave a child or close relation out of your Will.

However, under the Inheritance (Provision for Family and Dependants) Act 1975, the following family members can challenge the Will, including:

  • Your children – regardless of their age
  • Your spouse, or civil partner
  • Your former spouse or civil partner – unless they have entered into a new marriage of civil partnership.

In the case of case of Rea v Rea & Or, Mrs Rea changed her  Will in 2015 to leave her home (the main part of her estate) to her daughter Rita.  Her previous Will made in 1986 had divided the property equally between all of her children.

Of course, Mrs Rea was well within her rights to change her Will and to cho se how her estate was distributed without any explanations at all. However, in this case, Mrs Rea left a letter with her Will that explained her decision as follows:

“I DECLARE that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this Will.”

Essentially, upon Mrs Rea’s death Rita tried to establish the 2015 Will and push this through probate but her 3 brothers claimed this was an invalid Will and that the 1986 version should stand. The basis of their argument was that

Mrs Rea had lacked capacity and been under undue pressure in making changing the Will. Ultimately in these cases it is up to the brothers to prove that their mother lacked capacity and/or that she had undue influence put upon her which is difficult to do.

In making the decision in this case it was said that “…it is not my task to decide whether the 2015 Will was justified or fair. I am only required to decide if it is valid.” If a testator is found to have capacity and understanding at the time of making decisions then any choice they make within their Will is valid and the courts will uphold this.

I have had many clients who have wanted to exclude their own children from their Will – for many different reasons.  My duty as a Will Writer is to do all that I can to ensure that my client has the mental capacity to make a Will, and is not being unduly influenced by any family member.  In this situation, I will always ask my client to sign a form stating that they understand the Will may be challenged, and I keep detailed notes of the reason for the decision.

In the case of Rea vs Rea & Or the case was upheld and the 2015 Will was enacted.