I Want to Leave Someone Out of My Will?

Under the law of England and Wales, exclusion of descendants through your Will is possible. However, as always, there is small print attached! Most importantly, always remember that if the person concerned is in some way financially reliant upon the Testator (the person making the Will), any exclusion of that person will almost certainly cause a claim. So for example, if you wish to exclude a child from a previous marriage or relationship because you have no contact, but the child is under 18 and you still pay maintenance for him/her under the separation agreement or divorce settlement, then through your Will, you have to make at least the same provision as per the settlement order. It is unlikely that if you fail to make a provision for him/her in your Will that it will go unchallenged by that child’s Guardian (probably your former partner/spouse), who has responsibility for that child’s welfare until at least he/she reaches 18 years of age (but possibly until the child has completed full-time education). Alongside the exclusion, it is always advisable to write a Memorandum or Expression of Wishes which details your reasoning behind such decisions so that if there IS a claim against the Will, at least the Court knows that you did reason it through and think about it carefully.

Please remember that the above applies to any full blood relations, which would also include legally adopted persons.

Also, consider whether it is actually a full exclusion which you want or maybe just a partial exclusion – so an unequal split between your children perhaps (maybe because one has already had the benefit of your financial support in your lifetime to a greater degree than the others). In this instance it is highly recommended that alongside your Will, you write an Expression (or Memorandum) of Wishes which outlines the reasoning behind your thinking when making your Will. Then if there is a claim against your Will, at least the Court will have an idea, in your own words,  on what your reasoning was in making the decision. It will not necessarily negate the claim, but it will at least prove that you had the mental capacity to think it through.

Maybe though, you don’t wish to exclude benefit from a particular person but simply limit it’s application. Then it’s a Trust which is required in favour of the beneficiary concerned, but with the power for the Trustees of your Will to limit the application in some way. The limitation is usually because you know that the beneficiary has an addiction of some kind – such as alcohol, drugs or gambling. However it may be because the beneficiary is in some way either physically or mentally incapacitated. Again the Trust will limit the application of funds accordingly to the discretion of the Trustees.

Whatever the reason, there will be suitable Trust which will achieve your aim.

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