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Sadly, not all families enjoy close relationships. Rifts form between family members for all sorts of reasons; a person might feel anger or resentment at their parent’s conduct while they were growing up; a parent may feel continuously let down by their child’s behaviour; sometimes explosive events tear families apart, but other times relatives simply drift apart.
Whatever the circumstances, in situations where the relationship seems irreconcilable, parents may take the difficult decision to leave their children out of their Will. But can you disinherit your children even if they’re adults? Or does a parent always have an obligation to provide for their children?
In theory, yes, you can disinherit your adult children. The basic rule in English law is that a testator may leave their money and property to whomever they wish. This principle is referred to as “testamentary freedom”.
However, there is an exception to this principle. The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) allows the children of a deceased testator to make a claim against the estate if they can prove that the testator failed to leave them “reasonable financial provision”.
As the matter currently stands, each claim is decided on its individual facts and there is no textbook way to absolutely safeguard your estate from legal challenge. Therefore, if you want to disinherit an adult child, it is crucial to consult an expert solicitor when drafting your Will to ensure your wishes are respected as far as possible after you die.
Testamentary freedom and inheritance claims
The Inheritance Act is frustratingly vague; where children of the deceased are concerned, reasonable financial provision means, “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.
The Act also provides a number of factors to consider when deciding whether to allow a claim, including:
- The financial needs and resources of the claimant and the Beneficiaries under the Will
- Any obligations the deceased had towards the claimant
- The size of the estate
- Any other matter the court considers relevant, including the conduct of the deceased and the claimant
However, these are broad factors, making it difficult to predict how any inheritance claim will be decided and often resulting in lengthy court proceedings.
The leading court case is Ilott v Mitson which dragged on for 10 years. The basic facts are:
- The testator disinherited her estranged daughter and left her estate to a number of charities instead (with which she didn’t really have any connection). She also left instructions to her solicitors to resist any attempts by her daughter to challenge the Will.
- After the testator died, the daughter (Mrs Ilott) brought a claim under the Inheritance Act.
- Mrs Ilott was initially awarded £50,000 but she appealed, claiming this was not enough. The Court of Appeal raised the award to £143,000 (enough to purchase her local authority house) with an option to obtain a further £20,000 additional income
- The charities then appealed to the Supreme Court
Given the Court of Appeal’s generous treatment of Mrs Ilott, the Supreme Court’s judgment was eagerly awaited. If the Court of Appeal judgment was upheld, it would become significantly more difficult for testators to disinherit their adult children, threatening the integrity of testamentary freedom.
Ilott v Mitson – the Supreme Court decision
The Supreme Court decided to overturn the Court of Appeal’s judgment and reinstate the £50,000 award to Mrs Ilott. Amongst various important considerations, the judges ruled on the following points:
Financial awards under the Inheritance Act should be limited to only provide for the claimant’s maintenance. This is effectively limited to “provision to meet the everyday expenses of living”.
The big question was, does a parent have a moral obligation to provide for their children in their Will? Ilott has shown that, in some circumstances, yes. If the child is in financial need and has a “moral claim”, they could be successful in their Inheritance Act claim.
“Moral claim” could refer to the conduct of the testator and/or the child, broken promises, and/or any other fault on the part of the testator which has resulted in the adult child being in financial need.
For example, in Ilott, the testator’s treatment of Mrs Ilott was judged to be unreasonable and harsh and she had no connection with the charities to which she left her estate over her daughter. Therefore, Mrs Ilott was awarded some money (but only enough for her maintenance).
The Court of Appeal judged that the charities wouldn’t be prejudiced by being deprived of their legacy donation under the Will. However, the Supreme Court decided this was wrong.
Where a testator has left money and assets to carefully chosen Beneficiaries, those Beneficiaries shouldn’t be required to effectively prove their own Inheritance Act claim to defend their legacy against less financially secure adult children of the deceased.
Is testamentary freedom safe?
Ilott v Mitson effectively protects a testator’s right to disinherit their adult children to an extent, however, the outcomes of Inheritance Act claims are still difficult to predict. Two subsequent cases demonstrate how each claim will ultimately turn on its own facts:
Nahajec v Fowle
Like in Ilott, the testator, Mr Nahajec, and his daughter were estranged. However, the daughter had made efforts over the years to rekindle the relationship. She was also in debt but planned to return to education. Mr Nahajec left his daughter out of his Will, choosing to leave the entire estate to his friend instead. When Mr Nahajec died, his daughter brought a claim under the Inheritance Act.
The court, moved by the daughter’s attempts to reconnect with her father and her dedication to improving her position in life, awarded her £30,000. This was clearly a decision which recognised the daughter’s “moral claim” as well as her financial need.
Ball v Ball
The deceased had 11 children and 1 grandson. 3 of the children (now adults) reported their father – the testator’s husband – to the police for sexual abuse. The father admitted he was guilty and received a suspended prison sentence. Despite this, the mother disinherited these 3 children, leaving her estate to her other 8 children.
The 3 children brought a claim under the Inheritance Act; however, they were unsuccessful. The judge held:
- The sexual abuse by the father did not give rise to a “moral claim” to their mother’s estate
- The mother made her intention to disinherit the children very clear for a period of over 20 years
- The estate was small (around £157,000) and with so many Beneficiaries, allowing the claim wouldn’t make much of a difference in the claimants’ lives
The impact on testators – can you disinherit your adult children?
The ultimate impact of Ilott v Mitson and the other cases is that the wishes and intentions of the testator are an essential consideration in Inheritance Act claims. This is even the case if the disinherited child is in financial need – there should be something more to help their case succeed and usually this is a “moral claim”.
Therefore, when making their Will, the testator should clearly demonstrate their reasons for disinheriting. For example, in Ball v Ball, the mother had made it very clear that she did not intend to leave anything to the 3 claimants and this was an important consideration when refusing the claim.
If you’re thinking about disinheriting your adult children, here are a few ways you can make sure your wishes are respected:
- Make a Will – if you die without making a Will, your children will inherit regardless of your wishes. Only by making a Will can you specifically exclude your children
- Make sure your reasons for disinheriting are clear – tell your family about your intentions to disinherit (including the adult children themselves) and leave instructions with your solicitor outlining why you have chosen certain Beneficiaries and left others out
- Update your Will regularly – if your Will was made recently, there’s less chance of anyone questioning your wishes
- Make use of trusts – consider leaving important assets and property to Beneficiaries in a trust rather than your Will as these cannot be challenged in the same way
- Consult a specialist solicitor – it’s essential to seek independent legal advice when making a Will, especially where there’s any possibility of a challenge
Do you need advice on Wills and estate planning?
If you need advice about disinheriting your adult children, our expert Wills solicitors can provide practical advice about the best way to proceed.
We will ensure your Will is drafted robustly with no room for confusion or ambiguity. We’ll also ensure to carefully document your reasons for disinheriting and/or for leaving gifts to certain Beneficiaries.
We also provide advice on contested Wills matters, including claims under the Inheritance (Provision for Family and Dependants) Act 1975.