Can I disinherit my children?

10 Sep 2021

The tempestuous relationship between the 1971 hit “American Pie” singer, Don McLean, and his singer/songwriter daughter Jackie has recently hit the newspapers after Jackie claimed she suffered emotional abuse at the hands of her father. Following the breakdown of their relationship, Don claims to have disinherited his daughter by no longer financially supporting her and removing her access to a $3 million trust fund. So is it as easy as simply writing a will and disinheriting your children?
Testators enjoy testamentary freedom in England and Wales meaning that you can write a will and leave your estate to anyone you wish. There are no forced rules of heirship in England and Wales like in many other countries, for example in Switzerland where you must leave your spouse at least 50% of your estate, with at least 75% of the remainder going to your children and grandchildren.
It is worth mentioning at this point that if someone dies in England and Wales without a will then a child will automatically inherit part of their estate, subject to any spouse receiving an entitlement.
In theory, you can leave your estate in any way you wish, including provisions to disinherit one or all of your children.  Whilst that may be the case, a child left out of a parents’ will can still potentially make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”). When determining whether a child should benefit, the Court will look at numerous factors, the application of which are specific to each case. These include the financial position, both now and in the future, of the applicant and the beneficiaries, any obligations or responsibilities owed by the deceased to the applicant or the beneficiaries, the size and nature of the estate, any disabilities that the applicant or the beneficiaries may have and any other relevant factors. If successful, the child will be entitled to such sum as is required for their maintenance. It is imperative that an individual looking to make a claim under the 1975 Act moves quickly as any claim must be issued with the court within six months of the Grant of Probate.  
There are ways that a parent wanting to disinherit a child can make their intentions clear, hopefully making it easier for loved ones to defeat a claim being brought by a child after the testator’s death and avoid a long, expensive dispute. For example, by including a letter of wishes with the will and giving clear, detailed instructions to a solicitor which can be recorded in an attendance note and included as evidence within any proceedings brought.
Whether you are a parent wanting to disinherit your child or a child who has been disinherited you should seek legal advice at the earliest opportunity to ensure that steps can be taken to protect your interests.

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