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Disinheriting people from your Will can be a bit of an uncomfortable topic. No one really likes talking about it. It’s just awkward. Families and friends do fall out, though – it happens. Sometimes the relationship passes the point of no return, and things are irreparable. If that’s happened to you and you’re wanting to write someone out of your Will, you’re in the right place.
Now, before we get into how to disinherit someone, I should give you a little disclaimer – you can’t stop people contesting a Will. Some people have a right to contest your Will:
- Your spouse, civil partner or cohabiting partner
- Your ex-spouse or civil partner (if neither of you remarried)
- Children, step-children, foster children and any child treated as yours
- Anyone financially dependant on you
- Anyone that was living with you for at least 2 years before you died
Whether they win or not is a different story, but you need to be aware that there’s always a chance your Will might be successfully contested. If you’re wanting to disinherit someone, you need to take certain steps when writing your Will to make sure there’s the best possible chance of your wishes being carried out. We’ll go through them in this blog.
Preparing to disinherit someone
First things first, sit yourself down. Have a cup of tea, listen to some relaxing whale sounds or something, make sure you’re calm. That’s important. Ask yourself if really want to disinherit them. It’s a big thing and it’ll have big consequences, so make sure you take your time and think it through. Don’t rush into any decisions.
If you’re 100% positive that you want to write them out of your Will, think about whether you actually can. If you jointly own something with them, like a home or a business, you won’t be able to write them out of your Will. You can’t stop them from getting something they already joint own. You don’t have to give them anything else, though, obviously.
Now, you might want to tell whoever you’re disinheriting that you’re writing them out of your Will. I won’t lie – it’ll probably go down like a lead balloon. It’s not going to be a pleasant conversation, but it’s one you probably need to have. It’ll give them time to come to terms with it and let you explain your reasons. If you don’t tell them, and the news comes as a shock after you’ve died, they’re more likely to lash out in rage and grief and contest your Will out of spite.
Writing someone out of your Will
If you’re disinheriting someone, you should always write a new Will. If you have a Will already and they’re in it, you could use something called a codicil to remove edit them out. It’s easier than writing a new Will, but that doesn’t mean you should use one.
‘Cos although a codicil seems more convenient, they’re not really made for disinheriting people. If you use a codicil, it gives whoever you’re disinheriting a perfect opportunity. They were once in the Will, so they’ve got a much stronger claim if they contest it.
If you write a new Will, though, they were never in it to begin with. They don’t get that strength in their argument.
Whenever you write a Will, whether you’re disinheriting someone or not, you should always use a professional Will writer. Don’t try to write your own Will from scratch – I wrote a whole blog on why that’s a bad idea.
A professional knows exactly what needs to go into a Will. They can add all the clauses you need, they can word it properly, they can guide you on what you can and can’t do. They can work with you to make sure that there’s the highest possible chance of your wishes being carried out.
Taking steps
When you’re disinheriting someone, there are steps you can take to make sure your wishes are carried out.
First, you might want to think about leaving whoever you’re disinheriting a small, token gift. I know that goes against the entire point of writing someone out of your Will, but if you leave them a little gift it shows that you’ve thought about them and it’ll make it harder for them to contest your Will. You have made provision for them, even if it is tiny.
Second, you’ll need to explicitly state that you’re disinheriting someone and give the reason for it. The more in-depth you go, the better. You can either write this into the Will directly or you can include it in a Letter of Wishes (a document that accompanies your Will).
I don’t know if you know this, but when you’ve died and your Will’s been through probate the contents of it become available to the public. Anyone can apply to the Probate Registry to get a copy. That means that if you’ve written your reason for disinheriting someone directly into your Will (technically) anyone can read it. It’s not exactly airing your dirty laundry, but you probably won’t want your private and personal dispute readily available to anyone.
A Letter of Wishes lets you explain your choice in private. It’s not accessible through the Probate Registry – only the Executors, any Trustees and possibly family members have access to it. You don’t have to worry about Joe Blogs getting a copy and reading about your private life.
It’s worth keeping in mind, though, that a Letter of Wishes isn’t legally binding. It’s just what you want to happen – your Executors can choose to ignore it they want. It doesn’t hold as much weight as writing something directly into your Will, although it’ll still be consulted. You’ll have to weigh up the pros and cons and see which you’d rather go with.
Third, you could ask your doctor to write you a dated statement confirming that, in their professional opinion, you’re of sound mind. If you want to go one better, ask them if they’d be willing to act as a witness.
‘Cos one of the top arguments people use when contesting a Will is that the Testator lacked mental capacity – that they weren’t of a sound mind when they wrote the Will. Obviously, though, if you’ve got a statement from a doctor saying you were, they can’t argue that.
Finally, if you disinherit someone and leave their share to a charity, make it clear why you’re leaving a gift to that charity. Is it a cause close to your heart? Have they helped you or someone close to you? Explain why you’re leaving money to them. If you don’t explain, it might be assumed you’ve left the gift out of spite and then your Will’s more likely to be successfully contested.
Other options
You could always consider setting up a Trust – they can’t be challenged in the same way that a Will can. Again, it’s not 100% infallible, but a Trust really narrows down the scope for your estate being contested. It’s harder for a disinherited family member to contest a Trust than it is for them to contest a Will.
Disinheriting someone from your Will isn’t easy – mentally and literally. If you’re wanting to disinherit someone, get in touch with us. We’ll be able to guide you through it.
We’ll go above and beyond to make sure there’s minimal chance of your Will being contested. We work with you to make sure that your wishes are crystal clear and they’ve got the highest possible chance of being carried out. Give us a ring us on +44 (0)330 229 0331, drop us an email at hello@vitaldocuments.co.uk or arrange a call with us – we’ve got you covered!
