In England and Wales, you have the right to leave your estate to whichever beneficiaries you choose. This means that it is open to you to disinherit a child if you wish. However, there are implications if you do this, and they may be able to make a successful legal claim in the future.
There are many reasons why a parent might not want to leave anything to a child, including where the child is more successful than their sibling, meaning they have less need of financial assistance, where a relationship has broken down, or where a child has issues such as substance abuse, which means that receiving a lump sum could be problematic.
Do children inherit if there is no Will?
Children do not always inherit from their parents if there is no Will, as it depends on the size of the estate and whether the deceased left a spouse. For example, if the deceased left a spouse or civil partner, that partner will inherit all of the deceased’s personal possessions plus the first £322,000 of the net estate. This means that they inherit everything, unless the net estate exceeds £322,000.
Where the estate does exceed this value, the amount over this sum is split in half. The spouse or civil partner receives one half, while the children share the other half equally.
The implications of disinheriting a child
If a child is not left anything in their parent’s Will, they may decide to make a claim against the estate if they need reasonable financial provision.
The Inheritance (Provision for Family and Dependants) Act 1975 (Inheritance Act) allows certain individuals to claim, including a child of the deceased and anyone the deceased treated as a child of their family.
In deciding whether to award a claimant anything, the courts will look at issues such as:
• The size of the estate and the nature of the assets
• The financial needs and resources of the claimant
• The financial needs and resources of the estate’s beneficiaries and any other potential claimants
• Any obligations and responsibilities the deceased had, including to other beneficiaries
• Any physical or mental disabilities affecting the claimant or other beneficiaries
• The conduct of the claimant
If a child is successful in an Inheritance Act claim, they will be entitled to reasonable financial provision. This is more than mere subsistence, but not enough to finance a luxury lifestyle.
A claim could be brought if a child has been left an inheritance but feels that it is not enough to meet their reasonable financial needs.
Reducing the risk of an Inheritance Act and other claims when disinheriting a child
While it is not possible to eliminate the chance of an Inheritance Act or other claim, certain steps can be taken to try to reduce the risk.
The Will should expressly state that the child is excluded. This can reduce the chance of a claim that there is an error in the Will and that the child was left out by mistake.
A Letter of Wishes can be written explaining the reasons you have excluded the child. This will ensure that everyone understands your thinking, and may deter potential claimants from starting legal action.
Using an expert Wills solicitor to draft your Will ensures that there is a clear record of your instructions and confirmation that you were of sound mind when you signed the Will, that you were not pressured into making the Will that you did and that you had knowledge and approval of the contents of the Will.
You can consider leaving the individual in question a small gift with a no-contest clause. This means that they will only inherit the sum if they do not challenge the Will or make a claim against the estate.
Whatever your reasons for excluding a child, this is a complex area of law and it is always advisable to work with a Wills solicitor to ensure that your assets are protected as far as possible, that your estate is structured efficiently and that your beneficiaries benefit from it in the way that you want.
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If you would like to speak to one of our expert Wills lawyers, ring us on 01634 353658 or email us at admin@pembrokewillwriters.com