Deliberately excluding someone in your Will.

July 11, 2018

Deliberately excluding someone in your Will.

Thinking about excluding someone in your Will?
There is often an expectation that certain people will inherit all or some of your estate when you pass away.
However, this may not be what you want and you might wish to exclude someone so that someone else can benefit after your days.

There are all sorts of reasons why you might make a deliberate exclusion. It could be that your children do not need any further wealth and they have requested to be left out of the Will or it could be because you have a difficult relationship with your child or they are spendthrifts and would waste the money. All reasons why you may want to leave them out.

Should I include a specific Exclusion clause in my Will?
The straight answer is Yes, your Will should contain a deliberate exclusion naming the person that will not be inheriting from your estate. It will include their full name and the relationship to you and it should also state that this person should not receive any of your estate.

This shows that their exclusion is deliberate and that they have not been omitted by mistake.

You should also create a letter of wishes as a separate document to the Will explaining why you have excluded them from your Will and it should be signed and dated by you and kept with the Will.

An important point is that this letter should not be attached to the Will because it will then remain confidential and for your executors eyes only. The letter will help to justify the reasons for the exclusion should the disappointed beneficiary wish to challenge your decision when you are no longer around to provide an explanation.

Why is it important to do this?
Once someone passes away, if they have left a Will, there is a possibility it could be challenged by a disappointed beneficiary.

If a deliberate exclusion is not included they could claim that by virtue of that person’s relationship with you, that the beneficiary has been omitted by mistake or that you lacked the capacity and understanding required to make the Will because you wouldn’t have intentionally failed to name them.

There is case law that has shown that a claim by a disappointed beneficiary can still be successful where there is a deliberate exclusion if the beneficiaries who are chosen instead do not have a close relationship with you. Your letter of wishes should explain why you have chosen your beneficiaries over the person you are excluding. 

It is vital that you seek professional help if you are excluding someone from your Will. It might seem relatively easy to add a deliberate exclusion, but it has to be done in the correct way, with a supportive letter of wishes, to ensure that your choices are protected in the event of a claim.  It’s all about the supporting evidence.

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