Excluding family members in your Will


An Englishman’s home is his castle, and on death he may give it to whomever he chooses – within reason.

In the recent case of Thompson v Raggett, the High Court ruled in favour of 79-year-old Joan Thompson, who had been living with her partner for 42 years but had been excluded from his will.  In her claim for reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975, the Court awarded her a property worth £225,000 plus £28,845 to renovate the property and another £160,000 for her future maintenance and care, out of an estate worth around £1.5m.

There are many reasons why someone would want to exclude someone from any benefit in their will.  However, the Inheritance (Provision for Family and Dependants) Act 1975 exists to ensure fairness where it would be unreasonable for a person to be entirely excluded.  Originally the Act allowed spouses (married couples), children and other dependants (ie. someone who was supported by the deceased for a period of two years immediately before the death) to make a claim if little or no provision had been made for them in the will.  In 1996, cohabitees were added to that list, so long as they could show that they had lived with the deceased for a period of two years before the deceased died.

In the case of a spouse or civil partner, the general rule is that no-one should be worse off because their husband or wife died than they would have been if they had divorced instead – so, generally, the courts will look to award the spouse at least what they would have received on divorce.

In the case of cohabitees (unmarried couples living together), children, and other dependants, the courts will aim to award them whatever would be reasonable in all the circumstances.  That gives the courts a very wide range of options.  For a young child, the award may be quite high, as it would need to consider the child’s educational and welfare needs as he or she grows up.  For a reasonably well-off adult child, it is unlikely that anything would be awarded.

The courts do not want to give a cohabitee exactly the same status as a spouse or civil partner, but it is fair to recognise the contribution that a cohabitee has made to a relationship and it is the level of that contribution which the court will take into account when reaching its judgment.  There is no doubt that the particular circumstances of the Thompson case – Mrs Thompson’s age, and the fact that she had been living with her partner for 42 years – swayed the court in her favour.  Had she been 42 and living with her partner for only 5 years, the outcome would probably have been different.

As ever, the law tries to provide a background in which we can all live our lives the way we choose, while providing something of a safety net for those occasions when what we want is unfair on someone else.

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Carolyn Monaghan

Legal Executive
& STEP practitioner

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