Testamentary Freedom means having the legal right to decide what and to whom we leave the proceeds of our estate. After all, we earned it so we should be able to decide who gets it when we’re gone, right? In a similar vein to our blog post on Sideways Disinheritance, what becomes evident is that leaving all of your earthly goods to whomever you choose is not always as black and white as the writing on a basic Will. In most cases, our spouses and children benefit from “reasonable provision” from our Wills, as the lion’s share of most people’s estates is left to a combination of these beneficiaries. Whilst many of us will want to bequeath our earthly goods and chattels to especially our children, it is not a given.
It’s a delicate subject but as “Freedom of Testamentary Disposition” allows, people the right to decide not to leave anything to their children (adopted, biological or for deaths after 1 October 2014, anyone who was treated as a child of the deceased) if that is their want. For most people, this is not a situation they wish to find themselves in but life isn’t always as it’s portrayed in a 1950’s American classic and familial relations can become strained or worse still, broken beyond repair. There may be addiction or mental health issues that could lead to a decision to preclude the bequeathing of a large sum of money or property from being a good decision or perhaps it’s as simple as they just don’t get along with each other and/or are estranged. Whatever the cause, the parent(s) can dole out the ultimate penalty, Disinheritance or writing a child or dependant out of your Will.
The Rise of the Challenger
This decision can be legally challenged under the Provision for Family and Dependants Act (1975) but the costs and angst can outweigh any success unless the Contester has access to a healthy level of funds (which doesn’t always guarantee success as was the case with Joe Corre, who was disinherited by his father, Malcolm McLaren). One high profile “success” story was that of challenger, Heather Ilott who succeeded in her case against three animal charities knows as Blue Cross & Others, after being completely written out of her mother’s will (though she only received a share with the remainder being awarded to the intended Beneficiaries). The case has cast a shadow over Testamentary Freedom, however, with the question being raised over the level of a person’s self-determination over the proceeds of their own estate.
Other classes who can challenge under the 1975 Act:
Spouse / Civil Partner
Former Spouse / Civil Partner
Dependant(s) of the Deceased
Various conditions govern the right to challenge in the above categories but for the purposes of this post, we are concentrating on children and dependants. Before uttering the words, “I think of you as my own”, you might want to think again but if your assets are protected in the right way, they can often be directed as per your wishes if you do not wish to leave anything to someone who was considered your dependant. In all cases, factors such as the length of estrangement and the rationale for Disinheritance will be considered and Reasonable Financial Provision may be granted as opposed to a lump sum. This is often referred to as “Maintenance” or “Life Interest” which can take the form of providing the Claimant with housing (as in the Right to Reside) for their lifetime.
The Case for Trusts
If you have a Will in place your wishes are clear. Having a Family Protection Trust alongside it ensures you have the best chance of those wishes being met. A trust can make it very difficult for a child to contest and in fact, after six years those assets would be safe. A Family Protection Trust allows you to have full access to the assets in the trust while you are alive, however, you choose who will inherit from it upon your death and the assets are protected against a range of threats. Family protection trusts must be set up during your lifetime and whilst you still have full capacity.
Planning Bee’s Paralegals are qualified professionals who have helped thousands of families with their Estate Planning over the years. They have decades of experience in innovative bespoke Estate Planning and lasting Asset Protection advice. Size doesn’t matter at Planning Bee, no matter whether you want to leave your prized thimble collection or your Ferrari 250 GTO and suite of global properties, Planning Bee will tailor an holistic Estate Planning Solution and ensure you don’t pay for something you don’t need. Take advantage of our complimentary initial consultation because reassurance is just a buzz away.