Who do you have to provide for in your Will?
Generally, while a person is alive, they can choose what they do with their property. What most people do not realise, however, is that upon their death, the Family Protection Act 1955 (FPA) provides that a person has a moral duty to provide for the “proper maintenance and support” of certain close family members in his or her will. These family members can include their partner, children and grandchildren, and sometimes their parents.
If these family members have not been adequately provided for in the person’s will, they may bring a claim in court seeking further provision from the estate. The court has a discretionary power to intervene in the terms of a deceased’s will if it finds the deceased has breached his or her moral duty.
The purpose of the FPA is to protect children and other family members from being disinherited, one child favoured over another, a partner being left with no or insufficient funds to continue the life they would have had while the deceased was alive.
That, however, does not mean that every person’s will must divide everything equally or just give to those people. Every family circumstance is different and there is sometimes good reason to provide unequally to your family or to leave someone out of your will altogether. For example, a parent may want to provide for a child who has greater needs; or the parents may have benefitted one child during their life more generally than the other. It may also be that there has been a serious falling out with a family member or the family members have been estranged from each other and a will-maker may want to not provide for those reasons.
Bearing in mind that a claim by a disinherited family member is possible, here are steps you can take to reduce the risks of a court changing your will. For example:
- Consider the needs of each of your family members and their degree of financial reliance upon you
- Talk to your family and discuss with them your intentions before making your will
- Discuss the issues with your solicitor and explain why you have made those decisions
- Consider how your wishes might be viewed after your death and if you/your solicitor think may be subject to a Claim, leave a letter in your will file, which sets out the reasons for the decisions you have made