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An unwanted gift?

08 December 2015

Everyone has heard of the perils of inheritance and probate disputes. A disgruntled family member, perhaps someone you have not had any contact with for several years, makes a claim against your estate following your death and effectively takes money from those whom you wanted to benefit.

Following recent case law it is now even more important that a person making their will sets their reasons out very clearly for either omitting someone from their will or distributing their estate unequally between their children. In Ilott v Mitson, an only child who had been out of  contact with the parent for 26 years, successfully made a claim on the parent’s death for one third of the value of the estate despite the deceased’s decision to leave it entirely to charity.

The most straightforward way to protect your estate from these types of claims is to make a will with a qualified solicitor who will not only listen to your plans for the distribution of your estate, but will walk you through the obligations you have to others, taking into account the type and value of your assets. This will include any business assets; perhaps you want to  leave your business to one child over and above your other children; perhaps you would prefer the income generated from your business to be divided equally between all of your children without having a damaging impact on that business.

Depending on your circumstances there are several options available when considering whether or not to omit someone from your will. This could include a carefully considered statement in the will itself making it clear to all who read it as to the reasons why you made that decision. Or you could leave a small gift to the person you wish to exclude, calculated by the potential value of their claim on your estate, if you want to dissuade them from making a claim on your will.

Finally it is also possible to put a clause in your will stating that if a beneficiary receives a gift under your will and makes a claim against your estate for additional funds, they will be forced to forfeit their original gift.

Jennifer is a solicitor in our wills probate & trusts department. She has experience of wills and estate planning, probate and the administration of estates, trusts and issues concerning mental capacity. She also handles a range of Court of Protection matters including lasting powers of attorney, the registration of enduring powers of attorney and deputyship applications. 

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Jennifer Cockett LLB (Hons)
Associate, solicitor
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Jennifer Cockett
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