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Whilst many people choose to make provision for their children in their Wills, it is sometimes the case that this is not the desired outcome for the person making a Will (“the Testator”). Indeed, the principle of testamentary freedom provides for this, in dictating that the Testator is allowed to leave their estate to whoever they choose.
However, as the case of Ilott v Mitson & Ors(“Ilott”) has shown, questions have recently been raised as to the possibility of adult children making successful claims against the estate of a deceased parent under the Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”), where reasonable financial provision has not been made for them in a late parent’s Will.
While this does not mark the end of testamentary freedom entirely, practitioners and Testators alike should be mindful of the potential for the Act to impinge upon testamentary freedom; restricting the right of a Testator to leave their estate to whomever they choose in certain circumstances.
If you are concerned about the impact of Ilott and/or the effect of the Act upon your own estate, there are measures that can be taken to safeguard your estate for your chosen beneficiaries. Unfortunately, a person with an automatic right under the Act cannot be precluded from making a claim. However, the use of non-provision clauses within your Will and/or Letters of Wishes to accompany your Will can provide vital evidence to a Court, in the event that your Will is challenged, of your state of mind when making the Will, your particular circumstances and your reasons for excluding certain persons from inheriting. In short, your testamentary documentation can speak for you, when you are unable to speak for yourself, which may make it harder for a successful claim to be brought against your estate when you have passed away.
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