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15 March 2016

Cutting family ties: The truth about disinheritance

We are often asked to prepare Wills by clients who do not wish their children to benefit from their death. This can be for a variety of reasons but it is usually because they have either fallen out, or have been estranged for some time.

Unlike most European countries which have some form of forced heirship, England is known for having complete testamentary freedom, so people can leave their estate to whoever they wish by their Wills.

However, married couples have responsibilities towards each other; as do parents for their minor children.  Early on in the last century, legislation was passed to allow spouses and minor children to apply to court for an order that financial provision should be made for them.   The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) has extended the categories of people who may make a claim to include former spouses who have not remarried, adult children, cohabitees and others who have been maintained by the deceased.

Having the ability to make a claim is no guarantee that any claim will succeed and until recently, it was considered that an independent adult child would not succeed in making a claim against their parent’s estate.

However, in the case of Ilott v Mitson last year, the Court of Appeal ordered financial provision, from her mother’s estate, for an estranged daughter who was living on benefits, against the charities who were due to inherit the entire estate.  The charities have been given permission to appeal the decision, which will be the first time a 1975 Act case is heard by the Supreme Court.  If the appeal does not succeed, there is a concern that it may encourage more adult children to make claims against their parents’ estates.

Most claims do not reach court and are either settled between the parties, or dropped by the claimant.  However, when a case does reach court and the court exercises its discretion to order financial provision for an adult child, this raises the question as to whether in fact clients do actually have complete freedom when disposing of their estate by Will.

So what can be done to discourage such claims?  It is vital that clients set out in a side letter (rather than in the Will itself) their reasons for wishing to leave a child out of their Will.  As a claim under the 1975 Act is often accompanied by an alternative claim that the Will is invalid due to the client’s lack of mental capacity to make the Will, or their understanding of its terms, or due to duress or coercion by a third party, clients are well advised to obtain medical evidence of their mental capacity at the time of making the Will.  Such a doctor’s report can often cause a claim to be dropped without the need to incur too much expense in defending the claim.  Often, too, making modest provision for a child in the Will may prevent them from making a claim – it is not, however, an easy task to decide what is an appropriate amount.

It is important that anyone seeking to disinherit a child should take advice from their solicitor as to the potential consequences before doing so; have their solicitor draw up an appropriate Will for them; and carry out their solicitor’s advice as to writing a side letter and obtaining a medical report.

For further advice on this issue, please contact us.