Excluding Your Spouse from Your Will – a Risky Decision?

When someone makes a will in England, it is a fundamental principle that they should be able to decide who benefits from their estate. This is called having ‘testamentary freedom’. However, this right is not as clear-cut as it may seem and excluding your spouse from your will can have consequences.

Excluding your spouse from your will – can they make a claim?

The Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) enables a party who is not sufficiently provided for under a will to make a claim against the estate in certain circumstances. A spouse can make a claim under the 1975 Act.

Necessity versus lifestyle

When a will is challenged, the court will look further than what is simply needed by the spouse to meet their daily expenses and will consider the lifestyle that they had been accustomed to during their relationship with the deceased. This applies to spouses or civil partners who have been excluded from a will.

The husband who excluded his wife from his will despite 66 years of marriage

Spouses might be left out of a will, or not be provided for sufficiently under a will, for multiple reasons. In the case of Singh (Deceased), Mrs Kaur, an 83-year-old widow, brought a claim against the estate of her husband of 66 years, who had failed to make any provision for her in his will. He had instead left his estate of some £2 million pounds to his two sons, also leaving out his four daughters. It transpired that Mr Singh had wanted to leave his estate to the male line of his family. This was despite the fact that Mrs Kaur had played a full role in the marriage and the family clothing business, and had had seven children with the deceased. As the will stood, she would have benefits of approximately £12,000 per year as her only source of income.

Mrs Kaur had a very good claim against the estate of the deceased husband. The judge concluded, somewhat unsurprisingly, that she should receive 50% of the net value of the estate, which was the proportion that she had sought.

As a general rule, and in particular where a very strong claim exists, as in this case, settlement should be attempted at an early stage of the dispute and throughout the case.

Speak to our experts about challenging a will

If your spouse has excluded you from their will, we can advise if you have a case to challenge the will. Lauren Mackenzie and her team are able to advise on such matters. Call 01992 512778 or send an email to start your enquiry.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.