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Testamentary Freedom

Do you have Testamentary Freedom?

There’s been an article in the news today about a lady who has challenged her mother’s will. Her mother died in 2004 leaving her estate to various charities as she’d had little or no contact with her daughter since she eloped with her then partner, now husband, as a teenage girl. The mother disinherited her in her will believing she had testamentary freedom to do so.

The daughter challenged the will as she has a right to do and, although she wasn’t awarded the whole estate by the courts, she was awarded a very decent sum by them.

All this has come about due to conflicting rules, your testamentary freedom is curtailed by the Inheritance (Provision for Family and Dependants) Act 1975 which has subsequently been amended by the Inheritance and Trustee Powers Act 2014.

Under these provisions any child has a right to inherit from their parents, if the parents feel that they do not wish to leave anything to their children then they need to write their will to disinherit them but also back the will up with documentary evidence and a letter saying why this is their intention, it would also be wise to get a note from a mental health professional to “certify” their sanity at the time of making the will, otherwise another challenge could come about through a different avenue.

The answer is to be aware that this area of challenge exists and to keep careful notes of your reasons for doing what ever you are doing, and, most importantly, make sure that you have a legal will and your Executors know where to find those notes in the event of your death so that they can be presented to a court in defence of your actions.

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