How Safe Is Your Will? How Someone You Don’t Want To Can Claim Your Estate
Imagine this: you’ve carefully drafted your Will, outlining exactly who should inherit your hard-earned assets, thinking you’ve done everything necessary to protect your loved ones.
You feel secure, knowing your final wishes will be honoured.
But what if I told you that even with a Will in place, people you never intended to benefit—estranged family members, ex-spouses, or even someone you briefly supported financially—could still make a legal claim on your estate after your death?
Yes, your Will might not be as bulletproof as you think. Under UK law, certain individuals can contest your estate, potentially diverting your assets from your chosen beneficiaries. In this article, we’ll uncover the alarming truth behind these claims, who is eligible to make them, and—more importantly—what you can do to protect your estate and ensure your final wishes are truly respected. Don’t leave your legacy at risk. Read on to discover how to safeguard it.
How Someone Can Claim on Your Estate Using the Inheritance (Provision for Family and Dependants) Act 1975
Even if you have a legally valid Will in place, certain individuals can still make a claim on your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
This Act allows people who were financially dependent on you, or who fall into specific categories (such as a spouse, ex-spouse, child, or cohabitee), to challenge your Will if they believe they haven’t been left “reasonable financial provision.”
The court then steps in to determine whether or not the claimant should receive a share of your estate, regardless of your express wishes in your Will.
Who Can Make a Claim?
The Act is specifically designed to protect those who were either:
- Spouses or civil partners (even if separated but not yet divorced),
- Former spouses or civil partners (who haven’t remarried),
- Children (including adult children),
- Cohabitees (who lived with the deceased for at least two years before death),
- Anyone financially dependent on the deceased, whether related or not.
This broad scope means that even people you might have deliberately excluded from your Will could claim a portion of your estate.
The Legal Process for Making a Claim
To make a successful claim under the Act, the claimant must prove that the current provisions of the Will leave them without reasonable financial support.
The courts take into account a range of factors, including the size of the estate, the financial situation of the claimant, and their relationship with the deceased.
If the court finds that the Will does not provide adequately for the claimant, it can award a financial settlement from the estate. This could range from a modest payment to a substantial part of the estate, depending on the circumstances.
Ilott v. The Blue Cross & Others (2017)
One of the most famous cases to come under the Inheritance Act was Ilott v. The Blue Cross & Others.
In this case, Melita Jackson left her entire £486,000 estate to animal charities, completely excluding her estranged daughter, Heather Ilott, with whom she had been estranged for 26 years.
Despite their strained relationship, Ilott claimed under the Act, arguing that she had limited financial means and that her mother had failed to provide reasonable financial provision for her.
The court awarded Ilott £50,000, a decision later upheld by the UK Supreme Court, although this was a reduction from previous awards.
The case highlighted how even estranged children—those you might not expect to inherit anything—can use the Act to claim on an estate if their financial needs are deemed significant enough.
George Michael’s Estate (2021)
Another high-profile case involves George Michael’s estate.
After the singer’s death, his former partner, Kenny Goss, who had been left out of Michael’s Will, made a claim under the Inheritance Act.
Goss argued that he had been financially dependent on Michael during their 13-year relationship and deserved reasonable financial provision despite being excluded.
The case was settled out of court, but it’s a perfect example of how former partners, even those not mentioned in the Will, can challenge the distribution of assets.
Both cases show how the Inheritance Act can be used by people you might not have intended to benefit, regardless of the details in your Will.
Estranged family members, former spouses, or partners you haven’t supported for years could legally claim a share of your estate, throwing your estate plans into disarray.
If the courts find their claim valid, they could end up receiving part of your assets, potentially reducing what your intended beneficiaries receive.
How to Minimize the Chances of a Successful Claim
While the Inheritance (Provision for Family and Dependants) Act 1975 can open your estate to claims from certain individuals, there are steps you can take to reduce the chances of a successful challenge.
Careful estate planning, combined with specific legal strategies, can help ensure your assets are distributed according to your wishes and minimise the risk of claims from unintended beneficiaries.
Here are several methods to protect your estate:
1. Include a Letter of Wishes
A Letter of Wishes is an informal document that accompanies your Will and explains your reasoning for distributing your estate in a particular way. Although not legally binding, this letter can provide the court with insight into your intentions if a claim is made.
For example, if you exclude an estranged child, the letter can explain why you made that decision, whether due to a lack of contact or past financial support.
The more detailed your reasoning, the better your chances of defending your estate against a claim.
However, the court is not obligated to follow the contents of the letter, but it can influence their decision, especially if your arguments for exclusion are well-justified.
2. Use an Exclusion Clause in Your Will
If you intend to leave someone out of your Will, particularly someone who might otherwise have a strong claim (such as a child or former spouse), it’s crucial to include an exclusion clause in your Will.
This clause explicitly states why that person is not included in your estate plan, whether it’s due to estrangement, previous financial support, or other personal reasons.
This makes it clear that the omission was deliberate and not an oversight.
While this alone may not prevent a claim, it adds weight to your intentions and can be a factor the court considers when determining whether the person should receive provision.
3. Add a Forfeiture Clause (No-Contest Clause)
A Forfeiture Clause, also known as a “no-contest clause,” is a provision in your Will that states if someone challenges the Will and loses, they forfeit their right to inherit anything.
This can be a strong deterrent for potential claimants who are included in the Will but might be unhappy with their share.
However, UK courts have the authority to set aside these clauses in certain cases, especially if the claimant is someone like a spouse or child with a strong case under the Inheritance Act.
Even so, the threat of losing everything can discourage minor or less justified claims.
4. Set Up Trusts to Protect Your Assets
One of the most effective ways to protect your estate from being challenged under the Inheritance Act is through Trusts.
By placing assets in a Trust during your lifetime, you can retain control over how those assets are distributed, often outside of the Will itself.
Trusts can be highly flexible and can include provisions that make it more difficult for disgruntled individuals to claim on your estate.
For example, a Discretionary Trust allows trustees to decide how to allocate funds, which means no single beneficiary has an automatic right to the assets.
This structure can make it more challenging for someone to claim that they were entitled to a specific portion of the estate.
5. Lifetime Gifting and Planning
One way to reduce the size of your estate and thus the potential for claims is through lifetime gifting.
By gifting assets while you are still alive, you can reduce the value of your estate and limit what’s left to be contested. This can be particularly useful if you foresee possible challenges from estranged family members or dependents.
Additionally, lifetime planning with a Financial Adviser or Estate Planning Lawyer can ensure that you make use of all available tax reliefs and minimise the overall value of your estate that is subject to Inheritance Tax or claims under the Inheritance Act.
6. Maintain Clear Communication with Potential Claimants
While this might seem counterintuitive, being open and clear with those who might otherwise have a legitimate claim under the Inheritance Act—such as children, former spouses, or dependents—can sometimes prevent challenges.
If these individuals understand your reasoning ahead of time and have had prior discussions about your Will and financial plans, they may be less likely to contest your estate after your death.
In cases where you plan to exclude someone, offering an alternative form of support, such as a smaller gift during your lifetime, can sometimes mitigate their financial need and reduce their grounds for a claim.
7. Regularly Review and Update Your Will
Life changes—marriages, divorces, new children or dependents—can alter the dynamics of your estate plan.
By regularly reviewing and updating your Will to reflect these changes, you can ensure that your intentions are current and accurately reflect your wishes.
A Will that is decades old or doesn’t reflect recent life events can be easier to challenge, as it may appear outdated or not reflective of your final intentions.
Although no plan is entirely fool proof, taking these steps can significantly reduce the chances of a successful claim under the Inheritance Act.
Proper planning, transparent communication, and professional advice are key to protecting your estate from being diverted away from your chosen beneficiaries.
By being proactive, you can safeguard your assets and ensure your final wishes are respected.
If you would like to stress test your retirement plans or even to get a plan in place then please get in touch for a free no obligation 15-minute call. We would be happy to review your position, explain where you stand and what you need to do to get the outcome you desire. We have created hundreds of happy and protected retirements over the years. This could be you too.
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