In some countries, it is not possible to disinherit a family member in your will because forced heirship removes the freedom to do so.
It determines which heirs are entitled to receive the assets of a deceased person. The rules vary from country to country, but in essence, where forced heirship rules apply, an individual cannot freely dispose of their assets as they want to. The entitled heirs are determined by the applicable forced heirship laws in force.
If someone already has a will but wants to remove one or more of the named beneficiaries, they must change their will accordingly. This can either be done by making a new will or by using a codicil, which is a document added to a will where the changes are relatively small and straightforward.
To exclude an entitled person from a will, the reasons for doing so must be clearly documented. Even when estranged from a child or family member, they may still bring a claim and could still be successful.
Although a testator (the person making their will) is entitled to include or exclude any beneficiaries from their will, their wishes can be overridden by the law. This allows dependents of the deceased to make a claim against the estate if they can prove that they were not sufficiently provided for in the will.
It is possible for certain categories of family members to make a claim for “reasonable provision” from the estate. The categories of potential claimants include the spouse or civil partner of the deceased, any former spouse or civil partner, children and anyone else financially maintained by the deceased.
Any claim must be brought within a set time of the grant of probate being issued to the executor, unless extra time is legally granted. Although it is possible to disinherit family members or others, who may have a claim to the estate under an existing will, there are occasions when the law overrides the wishes of the deceased, depending on the facts.
Other ways to challenge disinheritance include:
- Undue influence – if a someone coerced the testator to change their will
- Capacity – if the testator lacked sufficient mental capacity to understand any changes they made
- Improper execution – if the criteria for making a valid will was not met
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