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Does being disinherited affect your claim to your parents estate?

Does being disinherited affect your claim to your parents estate?

Disinheritance and the Law - Part 2

Does being disinherited affect your claim to your parents estate? (Part 2)

Practical advice if you are thinking about disinheritance

In Part 1, we considered the case of Heather Ilott, and whether it had the effect of limiting our freedom to leave our estate to whom we choose, and disinherit whom we choose.

The simple answer was that. Contrary to much press speculation, the Ilott case does not give a child an automatic entitlement to a share of its deceased parent’s estate. There are numerous factors to be taken into account, including the needs and resources of everyone involved, the amount of money at stake, and how everyone involved has behaved.

In Part 2 we look at the issues you must consider if you are in the difficult position of needing to disinherit your child, either partially or wholly.

Heather Ilott was disinherited by her mother because of a long-running estrangement. Rifts and estrangements are not the only reasons that lead parents to think about inheritance, though. A child’s addiction problems, debt and business issues, untrustworthy partner, or unreliable spending habits can all be grave cause for concern. Some parents also feel that one child is far needier than the other, and that uneven provision will equalise things. Gifts given in lifetime to one child and not another may need to compensated for in the will. One child may have borne the lion’s share of responsibility for caring for an elderly parent, and the parent may want to recognise that in the will.

Whatever the reasons for considering either partial or total disinheritance, it is an emotive decision that has potential to cause enormous difficulty within the family, both legally and emotionally. Unequal provision and disinheritance are the most common reasons for contesting a will in court.

To minimise the risk of a large portion of your estate being squandered on legal fees resolving disputes over your will, it is imperative to approach a decision to disinherit with great care.

1. Consider alternatives.

If you are thinking about disinheriting your child because they have addiction problems, or they have a partner you distrust, or because you fear their creditors may swoop in as soon as they inherit, there is an alternative to outright disinheritance. You can, as an alternative, wrap their inheritance in a discretionary trust, where trustees protect the assets on behalf of the family as whole, enabling your child to benefit as appropriate without laying the assets bare to predators. We have looked at this in more depth in an earlier post, which can be found here

2. Explain your reasons

If you are thinking about disinheritance because your relationship with your child has broken down irreparably, and you blame them for the breach, write a separate document to go with your will, explaining clearly why you hold your child to blame. Support that with evidence if you can. Then, in the event of a claim under the 1975 Act, you will have left behind evidence of conduct which can be taken into account.

3. Talk you your family

If you intend to favour one child over another because one child’s need is greater or one child has provided more care, or if you intend to skip a generation and help your grandchildren because your children are already secure, explain this clearly. If you can bring yourself to do so, discuss your decision openly as a family. Although it may feel easier to put your decision in a letter to go with your will, your disinherited child will feel very hurt to have been left out if your decision is sprung on them when they are grieving for you.

4. Don’t do it silently – be kind

Simply executing your will as you see fit, with no explanation why a child has been partially or wholly disinherited, is not only cruel and cowardly, but is storing up trouble. Every year I see contested will cases where siblings are at war with one another over perceived unfairness in their late parents’ will. Thousands of pounds are wasted on court proceedings and bitter accusations of fraud and undue influence are hurled, destroying families forever. If you can’t bring yourself to discuss your decision with your children, at least leave a letter explaining your decision.

5. Prove your mental capacity

If you are over retirement age and no longer in perfect health, your disinherited child later may try to contest your will on the grounds that you lacked mental capacity. To reduce the risk of this happening, it is a good idea to obtain a letter from your GP confirming that you are of sound mind, and medically fit to make a will. Keep the doctor’s letter with your will, so that arguments over capacity are nipped in the bud, thereby preventing time and money being wasted on legal arguments over capacity.

If you are concerned about issues raised in this post, feel free to call us on 0151 601 5399 for confidential advice and guidance.

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