When it is time to write your will, you may find yourself casting a critical eye over your family. Who would treasure the family silver? Who might sell the dog? Who can be trusted with the contents of your safe? Or will some of your assets be given away? But don't assume you can exert total control from beyond the grave.
Solicitors report a growing number of client requests for clauses that would never hold up in court: from demanding beneficiaries hit a certain salary before they inherit, to intricate dietary requirements for a beloved pet. You may be surprised by what you simply cannot put in your will and what some people have tried to sneak in.
You can't dictate someone's relationship status
One of the most common requested clauses is an attempt to control a beneficiary's personal life after death, for example, 'my son will only inherit if he divorces his wife,' says Jade Gani, CEO of Circe Law. While you can include that in your will, the son in question would be free to challenge it and would, in all likelihood, get it overturned. The law, says Gani, places limits on attempts to interfere excessively with personal relationships.
You can't leave money to your pet
You hear about it from time to time in the press – pets being left vast fortunes – but it cannot be done under UK law. You can gift your pet in your will, to a person, but you cannot give money directly to your pet, says Jane Cassell from JC Independent Wills & Probate. My clients sometimes gift a sum of money to the person who is taking on care for their pet, particularly if the pet requires vet fees or has expensive tastes.
You can't make gifts based on personal achievements
It can be tempting to use the financial gifts in your will to motivate achievements, but it is unlikely to stand up in court. For example, leaving a gift that can only be inherited when your grandchild starts earning £50,000 could be overturned and they would inherit without accomplishing what you wanted. Conditional inheritances can be valid, says Gani. Common examples include gifts that take effect upon a beneficiary attaining a certain age. However, a condition such as requiring a beneficiary to reach a certain salary is legally fragile as a court may view it as unreasonable or difficult to administer fairly. Courts can intervene if a condition is deemed impossible, unclear, illegal, contrary to public policy, or so restrictive that it effectively becomes punitive.
You can't disinherit everyone
Andrea Jones, Partner and National Head of Private Client Advisory at Irwin Mitchell, says a major misconception is that disinheritance clauses are watertight. Your children and other dependants can make a claim against your estate if they think reasonable financial provision has not been made for their maintenance. Even weak claims can result in costly and protracted disputes, eroding both the estate value and family relationships, she adds.
You can't exclude estranged grandchildren easily
As families become more complex, so can your will. One request Andrea has seen is for a son to be given money in their will, but not his adult children because a divorce has meant he has no contact with them. The issue is, if the son was to die and the will not be updated, then his children would inherit in his place. If you have a complicated family situation, the best thing to do is consult a solicitor about how to word your will to ensure your assets go to the people you want to inherit them.
Would it stand up in court?
The simplest way to understand what you can and cannot dictate in your will is to consider the judge if it was challenged and went to court. Judges are often less concerned with the morality of the condition itself and more concerned with whether it is precise, workable, and capable of being administered fairly, says Gani. One way around the problems is to have a Letter of Wishes kept with your will. While not legally binding, it lets you explain the thinking behind your decisions and set out requests that fall outside what the law will enforce, in the hope that your executors and family choose to honour them.
The strangest requests solicitors have heard
- Ashes to travel the world: Jane Cassell has one client who wants to encourage his sister to be more adventurous, so has asked in his Letter of Wishes for her to take his ashes on an around-the-world trip.
- Dog's diet: I remember a husband and wife who left a legacy to whoever looked after their dogs, but with very strict conditions that the dogs only be fed organic meat from the butchers, says Andrea Jones. They were advised that their food requests for their dog should be included in a letter to go to the recipient of the money.
- Contents of the fridge: Jade Gani had one client who left the contents of my fridge to a specific person. It turned out they had hidden £10,000 in the chiller cabinet for them to find.
