An abiding feature of English law is that you a free to leave your estate to whomever you please. Does that mean it is as simple as that to disinherit your own children or is there more to it? This article will hopefully enlighten you further.
In Banks v Goodfellow (1869-70) LR 5 QB 549, at 563, Cockburn C. J. stated
“The law of every civilised people concedes to the owner of property the right of determining by his will, either in whole or in part, to whom the effects which he leaves behind him shall pass …”
That remains good law, that is, the principle that to this day we have full testamentary freedom to leave our assets to whom we so choose.
By contrast, other jurisdictions dictate alternative dispositions of property on death such as pre-determined heirship under Sharia law in Islamic countries, and similarly, pre-determined heirship in civil law jurisdictions in many European countries such as Italy, Spain and France. In some states in the USA, statutory elective shares exist to prevent disinheritance of a spouse, in some cases regardless of the length of the marriage. In other US states, community property rules apply meaning any assets acquired before the marriage are considered separate property.
The matter therefore seems settled – that we can very easily disinherit our children. However...
Despite having full testamentary freedoms as I have stated above, there are conditions or caveats that we must take into account.
Firstly, there is the matter of the Inheritance (Provision for Family and Dependents) Act 1975 (more commonly known as the ‘75 Act) which provides for, amongst others, children who were financially dependent on their parent prior to their death to claim for a reasonable financial provision.
Ilott v Mitson [2017] UKSC 17, which concerns an estranged adult daughter’s claim under the ‘75 Act. The facts simply put were that a mother and daughter were estranged. It is noted that there had been a few attempts at reconciliation over the years but mother and daughter remained estranged for nearly a quarter of a century, and the mother stated clearly in a letter of wishes her reasons for excluding her daughter from her Will.
In excluding her daughter from any benefit under her Will, the mother choose to leave her estate, worth just under half a million pounds, to three animal charities with which she had no particular connection during her life. At the first instance case, Mrs Ilott was successfully awarded a sum of £50,000 for her claim of reasonable financial provision.
The case went on to deal with what would be a “reasonable” financial provision but that is a different story for a different day.
The moral of the story, so to speak, is that we are free to leave our assets to whom we please BUT we should also always have regard to the ‘75 Act before doing so.
The answer MAY lie in reducing their inheritance (even substantially) but not excluding them entirely.
So exclude your children from your Will entirely at your peril.
The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action.
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