Under the principal of 'testamentary freedom' we are all free to leave our assets as we wish by making a Will. If we do not make a Will our assets will be distributed to our nearest relatives in accordance with the intestacy rules. However, the distribution of your estate can be challenged on the grounds that your Will or intestacy does not make 'reasonable financial provision' for a dependant or family member. Those who can make a claim include your children, your spouse, a cohabitee and anyone else who is dependant upon you or who otherwise believe they are entitled to an interest in your estate. In a recent case an able-bodied and independent adult daughter successfully made a claim against her mother's estate even though they had been estranged for some years and in circumstances where no financial dependency could be shown. This case has been criticised as unduly restrictive of testamentary freedom. However, it does illustrate the risk that testators run when they attempt to leave someone less than might have been expected. Such claims can be upsetting for all concerned, delay the administration of the estate and may result in lengthy and costly court proceedings. However, there are a number of steps you can take to minimise the risk that your estate will be challenged and advice should always considered. What is reasonable financial provision? In determining what is reasonable provision the Court considers a range of factors including the nature of the relationship, the size of the estate, the financial position of the beneficiary and any financial support you may have provided during your lifetime. In the case of spouses the Court will also consider what your spouse might have expected to receive on a divorce. How can I avoid a claim? If you have any concerns that a claim might be made against your estate we would recommend that you contact us to discuss your particular circumstances. However, we are able to offer a number of suggestions to reduce the likelihood of a claim. Potential steps to consider include the preparation of a letter to accompany your Will to explain your actions. You may wish to explain why you have left someone less than they might have expected (for example you may have already made some other provision for them or have some reason for favouring another person or charity). Such a letter may help that person and the Court to understand your decisions. A forfeiture clause may also be included in your Will to discourage a beneficiary from making a claim. This may be particularly useful if you do wish to make provision for a particular beneficiary but believe they may consider bringing a claim for a greater share of your estate. This type of clause would usually provide that any beneficiary who brings a claim against the estate will lose any legacy or interest which they had been given under the Will. The risk of losing their inheritance altogether may be enough to dissuade a beneficiary from making a claim. If a claim was pursued, a Court would still be free to make an award to that beneficiary regardless of this clause. However, a beneficiary may be required to pay additional costs if they fail to secure a larger share of your estate. It will be seen that determining the appropriate beneficial interests under a Will is a complex matter and often far from straightforward. If you would like further advice or assistance then please speak with your usual contact at Wansbroughs. | 
