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Disinheriting a spouse

James Cook, partner & Jonathon Goldstone, associate, Collyer Bristow, 18/02/2022

In a recently reported case a wife tried and failed to write her husband out of her Will before she died resulting in her husband remaining the principal beneficiary. Although there were wider issues in this particular case which have given rise to calls from MPs for a change in the law (where the wife had been domestically abused by her husband and later committed suicide), disinheriting a spouse is already entirely possible in England and Wales if approached with care. 

This article will look at the law as it currently stands, namely the principle of an individual choosing their heirs, the requirements to override an old Will with a new one, and finally considering what can happen where a spouse has been successfully disinherited.

Testamentary freedom 

In England and Wales, the law of succession abides by the basic principle that on death you are free to leave your estate to whomever you choose. Most people typically want their family to inherit from them, particularly a spouse or their descendants. However, there is nothing to say you could not leave all of your wealth to the Battersea Dogs & Cats Home. 

That being said, as this article will examine below, people who might have expected to inherit from an estate can challenge their lack of provision from a Will once the testator has died.  Testamentary freedom is therefore not without some limits.

Requirements to override an existing Will

To create a valid Will in England and Wales, whether as a first Will or to replace their existing document, the testator must have the mental capacity to understand the nature of a Will, the extent of their assets, and who might have an expectation to inherit from them. None of these points seem to have been in question in the matter reported above. 

Furthermore, it is a requirement that a Will be made in writing, signed by the testator, and witnessed by two adult individuals of sound mind. It was the last hurdle that saw the new Will tragically fail in this case, as it was only witnessed by one person. Assuming all the other aspects of the Will were correct, a second witness would have made the new Will valid, and the abusing husband would have been disinherited.

What if a spouse has been disinherited?

A disinherited spouse, and potentially others who might reasonably expect to inherit, may be able to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Even a former spouse who has been divorced before the death of the individual may be able to make a claim under the Act, although not if they have remarried since divorce. Under the Act, the court can order that reasonable financial provision be made to someone out of an estate, even though the Will leaves them nothing. 

What is "reasonable" will depend on all the relevant circumstances and can be very hard to predict. Among the circumstances that might be considered are the conduct of the disinherited person and reasons why they were disinherited, as well as the extent to which they were financially dependent on the deceased individual during their lifetime. As such claims are so unpredictable, it is quite common for them to settle either through mediation or other means rather than proceed to a full trial.  

That said, in order to mitigate against a potential claim under the above Act it would be prudent for the Will to be prepared professionally. Both the individual and their Will writer should make contemporaneous notes setting out reasons as to why the spouse has been disinherited and circumstances behind their decision. Doing so may not head off a claim being made in the first place. A determined or nuisance claimant can never be ruled out, and some claimants are simply determined to have their day in court. However, it will bolster the chances of the deceased’s wishes being followed if the reasons behind their decision to disinherit a spouse are not only clearly evidenced in their own words but also contemporaneously verified by a professional Will writer.   

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