The rights to leave your property to anyone after death is largely exercised in the UK, but the rules aren't set in stone as disinherited heirs still have hope to challenge a will, writes Anna Gaston
It is a general principle in English law that a person has the right to leave his property as he chooses under his will. It appears that Lady Lucan has chosen to exercise that right, as her will reportedly disinherits her children, citing her reasons for doing so as their 'lack of good manners' towards her. Instead, Lady Lucan has apparently left her entire estate to a homelessness charity.
Lady Lucan, and others in the UK, are able to cut out their family entirely if they so wish. Unlike many other (generally civil law) jurisdictions, English law does not require an individual to make any testamentary provision whatsoever for a surviving spouse or offspring. It does not matter whether or not the individual has any reason for disinheriting their family; they may be as capricious, callous or charitable as they wish.
However, the general principle has certain statutory limitations; a spouse, child or other 'disappointed heir' has the ability to challenge a will once the testator has died, if any are unhappy with its terms or, in general terms, they consider that they have not been treated fairly.
The first option many seek to use is a right to challenge a will under The Inheritance (Provision for Family and Dependants) Act 1975 (the Act). Under the Act, a person’s dependants (for example his spouse and, sometimes, his adult children) may ask the court to change a will to include more generous terms if they have been left out entirely or consider that the will does not benefit them sufficiently. Those dependants (other than a spouse) can ask the court to make such 'reasonable financial provision as is necessary for their maintenance', insofar as the estate can provide it. A surviving spouse is entitled to apply for more, namely to such financial provision as is reasonable in all the circumstances, ‘whether or not that provision is required for his or her maintenance’.
If it is not possible to use the Act to change the provisions under a will, a claimant may seek to have the entire will set aside as invalid. This could be the better claim if, for example, the deceased made an earlier will containing more favourable terms for the claimant may then be revived or if the intestacy rules provide a greater benefit for the claimant than is the case under the will which is being challenged.
A will may be declared invalid for a number of reasons, for example: any mistake in the legal formalities, any claim that the deceased did not understand the effect of their will or any claim that some person exercised 'undue influence' over the deceased or that the will was executed under duress.
Ultimately, when preparing a new will, it is important to take professional advice. If you do wish to disinherit your family, or leave large legacies to charities or to non-family members then there are some practical steps you can take to try to ensure that your wishes are carried out and to minimise the risk of family disharmony and court proceedings after your death. As Lady Lucan has reportedly done, it is helpful to leave a detailed note of your reasons, and to explain your connection to any charity or person you have chosen to receive your estate. While your reasons do not affect the legality of your choice, it will give some helpful information to any judge who is asked to look at your choices.
Anna Gaston is an associate at boutique private wealth law firm Maurice Turnor Gardner LLP