Disinheriting a child is a sensitive and often emotional decision that some parents may consider for various reasons.
It involves legally excluding them from receiving any part of your estate after you die and can be a difficult decision, often influenced by personal, financial, or relational factors.
It's important to approach this matter with careful consideration and, ideally, with the guidance of a legal professional to make sure your wishes are clearly documented and legally binding.
This article aims to provide a clear and straightforward understanding of what disinheritance involves, why some parents choose this path, and what it means for everyone involved.
Table of Contents
- What does it mean to disinherit a child?
- Can I legally disinherit my child in the UK?
- What are the valid reasons for disinheriting a child?
- Ilott v Mitson - Summary and Implications
- How do I disinherit a child?
- Why is it important to state disinheritance explicitly in the will?
- What happens if my child contests the will?
- Get support with Lawhive
What does it mean to disinherit a child?
Disinheriting a child means deliberately preventing them from inheriting your assets or property through your will.
Simply leaving a child out of your will is not enough. This decision must be explicitly stated in your will; otherwise, your child may still be entitled to a share of your estate under the UK's inheritance laws.
Can I legally disinherit my child in the UK?
In the UK, you have what's known as 'testamentary freedom.' This means you can generally decide who inherits your property and assets after you die. As such, you can leave your estate to anyone you wish and disinherit your children if that's your decision.
However, testamentary freedom has its limits. The law recognises that certain individuals may have a valid claim to a portion of your estate, even if they are not included in your will.
This means that your children, including adult children, children from previous relationships, and any person treated as your child (like step-children) can make an Inheritance Act claim if they believe they have not been adequately provided for in your will.
The court will consider various factors when deciding whether to make provision for a claimant, including the size of your estate, the needs of the claimant, and any other relevant circumstances.
What are the valid reasons for disinheriting a child?
Common reasons for disinheriting a child include:
Long-term estrangement or a lack of relationship between parent and child;
If a child is financially stable and does not need further support;
If a child has already received their share of the inheritance during their parent's lifetime, such as significant financial gifts;
If a child makes certain lifestyle choices their parent disapproves of;
Complex family situations, like the need to provide for a surviving spouse or other dependents.
Ilott v Mitson - Summary and Implications
The case of Ilott v Mitson is a landmark decision that highlights the complexities of disinheritance under UK law.
Mrs. Jackson, who was estranged from her daughter Heather Ilott, left her entire estate to three animal charities, explicitly excluding her daughter.
Mrs Ilott contested the will under the Inheritance (Provision for Family and Dependants) Act 1975, arguing that her mother had not made reasonable financial provision for her.
Initially, the court awarded Mrs. Ilott £50,000. The Court of Appeal later increased this amount to £163,000, but the Supreme Court eventually reduced it back to £50,00, emphasising the importance of respecting the testator's wishes while also considering the claimant's financial needs.
What are the implications of this?
The Ilott v Mitson case reaffirms the principle of testamentary freedom but also underscores that this freedom has limits, particularly when reasonable provision is not made for dependents.
It also highlights the necessity for detailed and well-documented reasons when disinheriting a child. For example, by including a letter of wishes that explains the rationale behind the decision.
However, even with clear reasons, disinherited children may still contest the will, leading to legal disputes that the courts resolve by balancing the testator's intentions and the claimant's needs.
How do I disinherit a child?
Disinheriting a child is a sigificant decisions that must be approached with care and legal precision.
Here is a straightforward guide to help you understand the steps involved in disinheriting a child:
1. Seek professional legal advice
Before making any decisions speak with a wills, trust, and probate solicitor.
They can guide you through the process and make sure you will is legally sound. They can also help you understand the potential challenges and implications of disinheriting a child.
2. Write a new will
It is generally recommended to make a new will rather than amending an existing one with a codicil.
A new will provides a fresh, clear document that explicitly states your wishes, reducing the risk of it being contested.
3. Clearly state your intentions
In your will, explicitly name the child you wish to disinherit and clearly state that they are to receive nothing from your estate.
This clarity can help prevent misunderstandings and reduce the likelihood of a successful challenge because the omission was accidental.
4. Include a letter of wishes
Although not legally binding, a letter of wishes can accompany your will and explain your reasons for disinheriting your child in a detailed and personal manner.
While it won't prevent a claim, it provides valuable context that can support your will's validity if contested.
5. Consider a token gift
Some experts suggest leaving a small, symbolic gift to the disinherited child to demonstrate that the disinheritance was intentional, not an oversight.
It also might discourage them from contesting the will, as doing so could result in them losing this small bequest as well.
6. Use a no-contest clause
The no-contest clause states that if any beneficiary contests the will, they will forfeit their inheritance.
This can serve as a deterrent to potential challengers, although its effectiveness can vary and it should be carefully drafted with legal advice.
7. Communicate your decision
While it can make for a difficult conversation, informing your child of your decision while you are alive can sometimes reduce the shock and potential for disputes after your death.
Why is it important to state disinheritance explicitly in the will?
Courts often presume that the omission of an heir is an oversight, especially if the individual has a reasonable expectation of inheritance.
When you explicitly state that a child is disinherited in your will, it prevents this assumption and helps to uphold your wishes.
What happens if my child contests the will?
The first step to contesting a will usually involves entering a caveat at the Probate Registry to effectively pause the administration of the estate until the dispute is resolved.
Before court proceedings, parties may attempt mediation to resolve the dispute amicably.
If mediation fails, the case goes to court and a judge will decide based on legal principles and the case specifics.
Potential outcomes include:
Will Upheld: The court may find that the will is valid, allowing the executors to administer the estate as per the will's instructions;
Will Modified: The court might alter the terms of the will to provide reasonable provision for the contesting child;
Will Invalidated: The court declares the will invalid, resulting in the estate being distributed according to a previous valid will or the rules of intestacy if no earlier will exist.
Get support with Lawhive
Clear will drafting and a thorough understanding of your legal rights are important so that your wishes are respected and followed after your passing. By clearly stating your intentions in your will and using supplementary documents like a letter of wishes, you can minimise the risk of misunderstandings and disputes among your beneficiaries.
Check out our guide on Making a Will Checklist: 10 Steps to A Watertight Will to help you.
At Lawhive, we specialise in providing expert legal advice and support for all your estate planning needs. Our experienced network of wills, trust, and probate solicitors can help you draft a clear, legally binding will, offer guidance on supplementary documents like letters of wishes, and ensure that your estate is distributed according to your intentions.
Contact us today to learn more about how we can assist you in creating a comprehensive estate plan that protects your legacy and provides for your loved ones.