Nov 2020
You’d be surprised how often I get asked questions like this in my profession, but whilst leaving a family member out of a will is a difficult moral dilemma, there might be other things to consider - or it could just come back to haunt you.
Generally, the sort of queries I get like this can be linked back to a family feud. Many lasting years, even decades and, quite often, families have changed in that time - perhaps through divorce or remarriage, which makes people reassess how they would like to distribute any assets upon their death.
Even if feuds are long lasting, you might want to make careful considerations before leaving close family out of a will - particularly where it is direct descendants such as children, grandchildren or any adopted children.
If, for example, you were to include other children, leaving out just the one, the others may feel you have left that person out unfairly. In which case, they can contest the will, or, they can draft something called a deed of variation after you die, which could overrule anything you have written in your will.
A deed of variation can be made before or after probate, but would need to be written within two years of death. If granted, this can effectively re-write a will, so that a family member originally left out could then be included to receive an equal share.
If there is a dispute amongst the surviving children however, the child who has been left out of the will may be able to bring a claim under The inheritance and Family Provisions Act against the estate on the basis that their deceased parent did not make any or reasonable provision for them. Even if the claim is unsuccessful the legal costs could be significant and take months, sometimes years to finalise and damage family relationships beyond repair.
Of course, as with anything, there is no one size fits all, a deed of variation may not be appropriate or possible is not a guarantee that all will be right in the end. There can also be other unwelcome side effects - particularly where there may be blended families or if the individual has ever been made bankrupt. Therefore, it is really important that all options are carefully considered.
If you would like some more information about deeds of variation, or you are planning to draft or update your will, contact the Private Client team at Downs Solicitors to see how we can help. For contentious probate claims our litigation team can help.
