Published on: 26th June 2023

How to exclude a potential beneficiary from your Will

Family disputes are increasingly common and with 42% of marriages ending in divorce, estrangement is at an all-time high. Arguments can see family members separate for lengthy periods of time and in some cases, the situation never gets resolved. Stand Alone charity estimates that around 1 in 5 UK families are affected by family estrangement. So how could these disputes affect you and your Will?

Due to disagreements and separations, when writing your Will, it may be that you decide not to include a certain person or persons as beneficiaries. In such circumstances Will writers used to include what is known as a "non-provision clause" in the Will. A non-provision clause is a declaration excluding a potential beneficiary (or beneficiaries) from inheriting from your estate.

When you pass away, your Will becomes a public document, visible to all. In the age of the internet it is ever easier to look at the Will of a deceased person. If the individual excluded from the Will reads the non-provision clause, it may increase the likelihood of them attempting to contest your Will.

It can create a "red rag to a bull" effect. Therefore, the best advice now, is to probably not include a "non-provision" clause in your Will. If the aggrieved person can prove they were financially dependent on you, they may be able to inherit from your estate. This could potentially affect the distribution of your estate to your nominated beneficiaries; they may receive less than you had originally hoped. A claim against a Will could also delay the distribution of the estate; the time taken to achieve a resolution will be dependent on the excluded beneficiary, their claim and their resources. It is also worth noting that circumstances may change and a non-provision clause may no longer be relevant.

If you forget to change your Will this might result in unintended consequences. Currently, if a client wishes to exclude a potential beneficiary, our advice is not to include a "non-provision" clause in the Will but, instead, to leave a letter stored with, but not attached to their Will, explaining who is being excluded from distribution and why. If you later change your mind, you can destroy the letter or amend it accordingly. If a claim was made against your estate by the excluded person, your letter can be passed by your executors to the court which would be deciding whether the excluded person(s) had a legitimate claim.

A handwritten letter signed by the testator when they were "of sound mind" can bring the thoughts and feelings of the deceased into the court hearing, which is very powerful. It may also be possible to defeat a claim by an excluded beneficiary against the family home with the use of a special trust. For personalised advice on these issues please book a meeting with one of our Consultants by contacting us.

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