Exclusions, how do we protect these final wishes?

5th May 2022Alexander Brown3
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While it is an ugly truth, sometimes there are members of a family that have done one thing or another that have earned themselves a place on the list of people clients do not want to benefit from their Will.

So, with consideration to the Inheritance (Provision for Family and Dependants) Act 1975, how do we protect a testator’s wishes when excluding someone who might claim under this act?

While it may seem awfully simple, a Letter of Wishes (LoW) that is factual in its nature when explaining why an individual is being excluded will go a long way when it comes to protecting the estate from a claim. This isn’t to say any claim is precluded, nor that any claim will fail; but that the likelihood of a claim’s success might be diminished.

But a LoW in of itself is not simply enough, the reason the testator has for an exclusion ought to be based on sound reasoning and not one where their emotions are the only reason for the exclusion. The reason ought to be as factual as can be; though this isn’t to say the letter must be devoid of emotion, only that there should be a balance that the logical reasoning has been communicated with regard to how the testator feels about the situation.

While this does not seem to be a concrete protection against the estate, if there were such a defence, then the 1975 Act would be far less effective.

So how do you protect yourself as a Will Writer?

Ensure you carry out reasonable due diligence; the letter of wishes should meet the standard mentioned above and ensure your case notes are extensive on how you handled the case, including concerns you may have had and how you assuaged these concerns with sufficiently reasonable justification.

If you’re a member of The Society of Will Writers and you’re unsure of whether to continue with an exclusion, or that you wish to ensure you’ve taken appropriate steps, you can always reach out to our technical team who are happy to advise you on matters such as these!

Alexander Brown

Though only recently graduating with a Law degree from the University of Lincoln in 2020, Alex has worked closely with Crown Courts, has been an Intellectual Property Analyst for investment companies and has now become the latest addition to the Technical Advice team at The Society of Will Writers.

3 comments

  • Graham Jones

    6th May 2022 at 6:43 pm

    On one will course I attended, the instructor had a mantra, “if in doubt, exclude them out”, still think this is worthwhile. Also felt this article was a little thin on content.

    Reply

  • Jonathan Cope

    16th May 2022 at 9:23 am

    My simple recommendations when completing a Mem of wishes are always:

    1) Keep it simple. Not five pages long
    2) Keep it polite. I once had a client who wanted to exclude “that spawn of satan …”. The letter was rewritten!
    3) Keep it factual. No exaggeration. If you haven’t seen your son for 10 years, say 10 years, not 15

    Reply

  • Liane

    16th May 2022 at 2:14 pm

    I have been taught that if the testator can bear it, to leave a nominal gift better than leaving out all together?

    Reply

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