Family relationships can be complicated, and estrangement is sadly far more common than many people realise. Whether the breakdown stems from a long-standing family rift, a more recent dispute, or simply growing apart over time, such estrangements can have significant legal consequences – particularly when it comes to making or updating your will. These situations often carry emotional weight but they also raise important legal considerations that should not be overlooked.
It is a common misconception that you can leave your estate to whomever you choose, without consequences. While English law does support testamentary freedom, that freedom is not absolute. If a close family member, such as an estranged child or spouse, is excluded or left with little provision, they may still be able to challenge your will after your death.
‘When someone instructs us to make a will, it is essential to understand their individual circumstances and objectives. If a close relative is estranged, we treat that as a clear indicator to take additional care in drafting their will and supporting documentation,’ explains Will Richards, a Senior Associate in the wills and probate team at Nalders. ‘With the right approach, you can ensure your wishes are carried out while minimising the risk of a dispute or litigation for those you leave behind.’
Why estrangement matters in will planning
Where there is an estrangement, emotions often run high – both during life and after death. A will that excludes, or provides only minimal provision for, a close family member is more likely to be challenged, particularly under the Inheritance (Provision for Family and Dependants) Act 1975.
This law allows certain individuals to apply to the court for reasonable financial provision from your estate, regardless of what your will says. Those eligible to claim include spouses, civil partners, cohabiting partners, children (including adult children), and others who were financially dependent on you at the time of your death.
Estranged adult children are increasingly bringing claims against their parents’ estates, especially when the will appears to favour siblings or charities. For example, in the case of Ilott v Mitson, a disinherited daughter succeeded in her claim for provision despite a decades-long estrangement, highlighting just how complex such claims can be.
Whatever the outcome, your executors would need to deal with the claim and related costs, and this could impact on what other relatives eventually receive.
Recording your wishes – and your reasoning
If you intend to exclude someone from your will, or limit what they are to receive, it is not enough to simply state this in the will itself. To reduce the risk of a successful challenge, your intentions and reasoning should be clearly documented.
A supporting letter of wishes is often a vital tool. This is a confidential document (not legally binding) that can be used to explain:
- the nature of your relationship with the estranged person;
- the history of the estrangement, including when and how it arose;
- your reasons for excluding or limiting provision for them;
- any financial support already given during your lifetime; and
- confirmation that you have considered their circumstances but still believe your decision is appropriate.
The letter should be signed and dated, ideally with legal advice. It can be a crucial piece of evidence if your will is ever contested, helping your executors or the court understand your wishes and the rationale behind them.
In particularly sensitive cases, we may also advise making a formal written statement or statutory declaration, prepared with the benefit of legal advice and retained on file in support of your testamentary choices.
Using discretionary trusts and other strategies
In some cases, it may be possible to structure your will to help reduce the risk of a successful claim while still reflecting your wishes.
A common approach is the use of a discretionary trust. Rather than leaving fixed amounts to individuals, you name a group of potential beneficiaries – which may or may not include the estranged person – and give your trustees the discretion to decide who receives what, when, and how much.
This structure offers:
- flexibility in managing complex family dynamics;
- greater control through your chosen trustees; and
- a degree of protection, as the estranged person is not automatically excluded and has no fixed entitlement.
A separate letter of wishes can guide your trustees on how you would like the trust to be administered.
However, it is important to understand that a discretionary trust within your will still forms part of your estate. This means it remains open to challenge under the Inheritance (Provision for Family and Dependants) Act 1975, just like any other part of your will.
Lifetime planning to reduce risk
To reduce the likelihood of a successful claim – or to remove certain assets from the reach of a claim entirely – lifetime planning may be advisable. By making arrangements while you are alive, you may be able to reduce the size of your estate and limit the assets available for redistribution after your death.
Examples include:
- making lifetime gifts to those you wish to benefit most;
- setting up a lifetime trust to hold assets outside your estate;
- using life insurance policies written in trust, which pay out directly to beneficiaries; or
- restructuring property ownership to avoid unintended consequences.
These approaches can offer additional security – but they must be handled with care. Under legislation, the court has the power to treat certain lifetime transfers or trusts as part of the estate when assessing a claim. This means that even assets given away or settled during your lifetime could, in some cases, be brought back into account if the court believes they were transferred to avoid a claim or defeat reasonable financial provision.
Each situation is unique and requires tailored legal advice.
Avoiding conflict and minimising risk
No will is ever completely safe from the risk of a challenge, particularly where there are eligible individuals who may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, there are practical steps you can take to reduce the chances of a successful challenge and protect your executors and beneficiaries from costly litigation. These include:
- obtaining a full assessment of your legal position before drafting or amending your will;
- having your testamentary capacity assessed and documented, especially if the estrangement or your decision may be controversial;
- ensuring your will is correctly signed and witnessed;
- appointing professional or impartial executors, particularly if there are likely to be disputes within the family; and
- communicating your intentions to your chosen executors in advance, so they are prepared to manage any fallout after your death.
Regular reviews of your will are essential. If your relationship with an estranged relative changes, or if their personal circumstances shift (such as becoming financially dependent), you may need to update your will and any supporting documents. In particular, the letter of wishes should be reviewed and amended as needed. If they contain outdated or incorrect details at the time of your death, they can undermine your intentions and even strengthen a challenge, becoming a double-edged sword rather than a protective measure.
How we can help
Planning your will when you are estranged from a family member requires thoughtful legal advice, careful drafting, and attention to detail. Our experienced team can help you:
- draft a will that reflects your wishes while minimising legal risk;
- prepare supporting documents that explain and justify your decisions;
- advise on the use of discretionary trusts or lifetime planning options;
- provide clear, confidential guidance tailored to your family situation; and
- support your executors in defending any future claim if needed.
We regularly assist clients in navigating the difficult intersection of family conflict and estate planning. With sensitivity and expertise, we can help you achieve peace of mind knowing that your affairs are in order.
For expert advice about making or updating your will, please contact Will Richards in our private client team on 01326 31665 or via email at wrr@nalders.co.uk . Nalders has offices in St Austell, Truro, Falmouth, Helston, Camborne, Newquay and Penzance..
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.