In this article, contentious wills, estates and trusts partner Rachel Waller answers the big questions surrounding legal disinheritance and the potential for a subsequent legal dispute over a will.
Can I legally disinherit an adult child, or could they still make a claim against my estate after my death?
Yes, leaving an adult child out of your will is allowed in England and Wales, but it’s not bulletproof. Under the Inheritance (Provision for Family and Dependants) Act 1975, they can still go to court and argue the will didn’t leave them “reasonable financial provision.” Judges look at factors such as how much money the child needs, how big the estate is and, more recently, whether you had a moral duty towards them.
Adult children have a tougher time winning these claims than a child or dependent would. Nonetheless, in a recent case, grow-up daughter Emma McDaniel won her claim against her father’s partner and the executor of the will. Why? Although the facts of the case were deemed to be exceptional, the court considered that she was struggling financially, had health problems and had patched things up with her dad before he died — even though he’d cut her out of the will and she was capable of earning her own money.
If you’ve genuinely fallen out with your kids and don’t want to leave them anything, don’t just write them out and hope for the best – the court will look at your relationship with your child holistically.
How do inheritance laws differ across England and Wales, Scotland, and Northern Ireland when someone wants to exclude a child from their will?
In England and Wales, you can cut a child out, though as above they might still challenge it. Northern Ireland works much the same way.
Scotland is different. Children have what’s called “legal rights” or “legitim”, meaning they’re entitled to a slice of your estate no matter what your will says. This applies to the “moveable” part of your estate (anything that isn’t land or property), and it doesn’t matter how you’ve worded your will — legal rights trump it. This only applies if you were living in Scotland when you died.
What financial factors should I consider before writing a child out of my will, including their dependence on me or any support I have previously provided?
Ask yourself: is my child relying on me financially? If the answer’s yes, that could give them grounds for a claim under the 1975 Act. So if you’ve been supporting them and want that to stop, stop it now — and be clear about why. Keep a note of your reasons for doing so and write them down, ideally alongside your will.
For an adult child to succeed in a claim, they would need to establish “something more” than just the obligations that would arise on account of a parent-child relationship that would make it unreasonable for the child not to be provided for.
If your child is vulnerable in any way, that strengthens any potential claim that they might have. Even if claims are rare, think about whether they can actually earn a living. Do they have caring responsibilities stopping them from working? How close is your relationship, really? The test of what amounts to “something more” has been developing, and the courts recently considering a “moral dimension”.
What steps can I take to reduce the risk of a costly legal challenge to my will?
If you’re already supporting someone, make sure your will reflects that. If you want to stop, do it straight away, not just in the small print of your will after you’re gone.
Get proper advice from a solicitor. It’s worth every penny if it protects your family from a legal fight down the line. Talk to your family too – tell them what you’re planning and why. Many of the disputes I deal with, whether under the 1975 Act or otherwise, could have been avoided with one honest conversation before the person died. It gives everyone a chance to air their grievances and know where they stand.
If you’ve fallen out with your kids, don’t be shy about it. Make it clear to them and to everyone else that this is the situation, and stop providing for them if that’s your intention.
Should I leave an explanatory letter alongside my will, and could the wording of that letter help or harm my estate’s position?
A letter won’t stop a court hearing a 1975 Act claim. It can’t shut that door completely but it can help your case, especially if you’ve got a genuine reason for cutting your child out, like estrangement or them being hostile towards you.
Again, talking to your family while you’re alive can help, even better to do so and then record what was discussed in writing.
That said, even when a family member has no real legal right to challenge things, some people just can’t accept being left out. They think they have something owed to them. I’ve seen relatives try to challenge a will by claiming undue influence or that the person didn’t have the mental capacity to make sound decisions. Even if those claims go nowhere, the estate still has to spend money defending against them. So a clear, honest letter explaining your reasons can go a long way to stopping that kind of conflict before it starts.
Would leaving an estranged child a small or token amount make the will harder to challenge, or is that a common misconception?
A small gift can show you didn’t just forget about your child, or leave them out by accident, but again won’t stop a valid legal challenge under the 1975 Act.
An explanatory letter does more good, even if it has its limits. Your best bet is either making sure you properly provide for anyone who depends on you or sorting out any changes to that immediately.
What could a dispute over the will cost the estate in legal fees, and how might it affect the inheritance received by other beneficiaries?
There’s no set answer here. It all comes down to how the people involved behave. Legal costs can spiral fast and that eats straight into what’s left for everyone else.
Courts can order one side to pay the other’s costs, depending on how they’ve conducted themselves. But the estate isn’t automatically on the hook for the person bringing the claim and it could end up paying its own costs and the claimant’s too. That hits everyone’s inheritance hard, so it really pays to only fight or defend a claim if you’ve genuinely got a strong case. Weak claims or unnecessary costs can land you with a nasty costs order.
To give an example, take an estate of £600,000 split three ways between the kids. One of them challenges the will. Solicitors go back and forth, medical records get pulled up, witnesses give evidence and it all ends up in court. By the time it’s done, the estate has spent £120,000 on legal fees on top of what everyone’s personally forked out. Even if the challenge fails, there’s no guarantee the person who lost will be able to pay those costs back even if the court says they should. Having a legal dispute alone could mean each beneficiary walks away with a lot less than they would have if it’d been sorted out early, or never happened at all.
Are there alternatives to disinheritance, such as using a trust, making lifetime gifts or leaving money to grandchildren instead?
If you want to cut one child out but still help their kids, or their side of the family more generally, there are ways to do so. It really depends on what you’re trying to achieve so speak to a solicitor about the best route for your situation.
What tax implications could arise if I change the beneficiaries of my will, particularly in relation to inheritance tax and gifts made during my lifetime?
Changing who’s in your will does not trigger a tax bill on its own. A will only kicks in upon the point of death so you’re free to tweak it as much as you like, although you should get advice on the tax implications of any changes and make sure that any changes are legally sound and properly executed.
That said, you should consider any gifts you make in the seven years before you die – those can get pulled back into the pot when working out inheritance tax. Some gifts don’t really count as “given away” at all if you haven’t fully let go of them: for example, if you hand over your house to your kid but carry on living there rent-free, that’s a “gift with reservation of benefit” and can cause serious inheritance tax headaches. There could be Capital Gains Tax issues too, so don’t change your will without getting proper advice first. Make sure to protect the people you care about.
How often should I review my will after a family falling-out, and what practical steps are needed to ensure a revised will is legally valid and reflects my current wishes?
If your will no longer matches what you actually want, sort it out straight away, whether that’s down to a falling-out, a beneficiary passing away or your finances changing.
If your will doesn’t say what you really mean, your family might not be able to carry out your wishes no matter how clearly you’ve told them what you want elsewhere. That’s especially true if someone unhappy with the changes decides to make trouble.
Talk to your loved ones about what you’re planning to change, then get proper legal advice on what that means and make sure it’s all written into a valid will (or any other legal document you need), ensuring your wishes will be carried out properly.
