DATE PUBLISHED: 03 Nov 2016 LAST UPDATED: 24 May 2022

Can you prevent a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Can you prevent a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Ultimately the answer is no. However, there are steps you can take to consider whether a claim may be likely and actions you can take to provide evidence for your reasons for excluding a potential applicant under the Inheritance (Provision for Family and Dependants) Act 1975 (“Inheritance Act”) from your Will.

Who could make a claim?

Under the Inheritance Act, there are certain categories of people who can make a claim against an estate. These are: spouses, ex spouses (who have not remarried), cohabitees, children, people treated as children and dependants. A spouse will receive an award if the Court decides that they have not received “reasonable provision” from the estate; the other categories will receive an award if they have not received “reasonable maintenance”. In making this decision, the Court will consider a number of key factors set out by the Inheritance Act.

Can I do anything to prevent a claim?

There is no definitive way of preventing a claim. However, there are steps that you may wish to consider when writing a Will.

You may decide, for example, to leave an expression of wishes to explain why no provision or only limited provision has been made for a particular individual. The benefit of this is that there is a statement from the person making the Will to explain why they have reached the decision to exclude or limit a person’s entitlement, and why they may have chosen other beneficiaries in that person’s place. However, this document cannot prevent a claim, it will only be considered as part of the evidence in defence of a claim.

It is also possible for a Will to include a clause under which an entitlement is conditional upon that person not making a claim against the estate. Whilst this may make a beneficiary consider whether they want to risk their entitlement by making such a claim, again, this cannot prevent a claim being made.

Another option is to consider a discretionary trust with a letter of wishes. This is an option where a person is wary about leaving money to a potential beneficiary if they have concerns about their use of those funds.

Diverting money away from the estate

It is not possible to simply diminish an estate so that no claim can be made against it. If a person diverts money away from their estate, with the intention of trying to prevent an award under the Inheritance Act, the Court is able to order that this money be clawed back and form part of the estate.

Conclusion

As it is not possible to prevent a claim under the Inheritance Act, if you wish to exclude a person who may have a claim it is sensible to get advice on their potential claim and your options so that you can decide how to proceed in writing your Will.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768.

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