Can You Disinherit Your Children-

 

Often family fights and resentments can be continued on even after death, with parents deciding to disinherit their children. Families are often complicated and fragile. Parents don’t always get on with their children, and often arguments and grudges can be carried on by family members for years – sometimes without ever resolving.

When a parent’s decision to disinherit their children is influenced by these issues from the past it often creates tension and problems with surviving family members. The age old question, whether it’s ever okay to disinherit your own children, may provoke different answers from members of the public but the law has its own view.

Do You Have The Freedom To Disinherit Your Children?

disinherit, wills, cutting someone out of a will, can I cut my children out of a willThe principle of testamentary freedom refers to the freedom of individuals to dispose of their property as they wish upon death, and is old as Roman law. Some would regard this as an obvious right, but in reality testamentary freedom often conflicts with the principle of testamentary duty. In fact, in modern civilisations complete testamentary freedom is indeed rare, with many jurisdictions imposing limits through statutes for when dependants, such as a spouse or children of the deceased, are not provided for under the deceased’s will.

It was under the Inheritance Act 1975 that the Court of Appeal in the UK overturned Melita Jackson’s will which left her entire £486,000 fortune to three animal charities rather than her only child, Heather Ilott. Melita’s husband Thomas died tragically when she was six months pregnant with Heather, and Heather had a complicated relationship with her mother.

When Heather was seventeen years old, she ran away from home due to her mother’s disapproval of Heather’s then boyfriend and now husband Nicholas. Their relationship was never the same.

Heather has described periods of estrangement and then short lived reconciliation with her mother, triggered by events such as Heather and Nicholas naming their youngest daughter Ellen, after Thomas’ late mother, with whom Melita had not gotten on. Another estrangement was caused after Melita hosted a roast lunch in celebration of her 60th birthday with Heather and her family, and a letter sent afterward accused them of showing no gratitude towards her.

Heather stated that ‘I did nothing wrong to deserve my mother’s spite… my only crime was to fall in love with Nick and my mother didn’t approve’. To add salt to her wound, the only pet they had owned was a dog named Cuddles, and Melita could ‘hardly be described as an animal lover’, making her choice of The Blue Cross, RSPB and the RSPCA as beneficiaries even more hurtful to Heather.

Much of Melita’s wealth had derived from assets her late husband Thomas paid for from his wages, and the compensation money awarded after he fell to his death from a broadcasting mast in Cardiff while working as an electrician for the BBC. Heather stated that ‘regardless of how [her mother] felt about me, I strongly believe [her father] would have wanted provision made for me.’

The legal battle ended last year, after eleven years of litigation. The judge ultimately awarded Mrs Illot a £164 000 share in her mother’s estate, after they agreed with Heather’s lawyers that Melita had been ‘unreasonable, capricious and harsh’ in disinheriting her daughter. The Court of Appeal also considered factors such as the size of the estate. Melita’s obligations and responsibilities towards Heather, and Heather and the charities’ competing needs and resources.

disinherit, wills, cutting someone out of a will, can I cut my children out of a willThis decision was reached despite Melita, apparently anticipating her daughter’s upset of being excluded from the will, instructing the executors of her estate to ‘strenuously’ fight any attempt by Heather to challenge her final wishes. This has triggered arguments from some that the courts should never be able to overturn the contents of a will, no matter how eccentric.

There Are Circumstances In Which You May Disinherit Children

Closer to home, the New South Wales Court of Appeal upheld Beryl Burke’s decision to cut her son Terry out of her will. Instead she left a legacy of $100 000 to her grandson Stephen (Terry’s son from his first marriage) and the residuary of her estate was to be divided equally between Alan and Diana, her two other children.

Beryl had had no contact with Terry for the last twenty years of her life, and a letter dated 5 August 2010 explained her reasoning for making no provision for him was to reflect that he by his own choice had cut himself out of her life, becoming totally estranged from her family. This estrangement had caused the family ‘a great deal of pain and upset’.

In 2013 Terry commenced proceedings in the Supreme Court seeking a family provision order out of his late mother’s estate. Terry had been made bankrupt in 2010 and received an automatic discharge from bankruptcy a few months after commencing proceedings. It was not disputed that he was in financial need.

The case raised the issue of whether a parent is always under a moral duty to make provision in their will for their estranged children. The Court of Appeal dismissed Terry’s appeal after the primary judge found that Beryl was ‘entitled to regard Terry as a person undeserving of any benefit from her estate whatever his financial circumstances’, dismissing his application with costs. The court held that there was no rule meaning provision had to be made for adult children regardless of estrangement, except in cases of ‘hostility or callousness’.

It also held that mere estrangement will not be a determining factor against, nor estrangement in the absence of hostility a determining factor in favour of the making of provision for an adult child. Rather, estrangement is a factor to be taken into account in the circumstances of each case when deciding if a deceased parent had failed in their moral duty to make proper provision for their child. It is clear that the court cannot have one rule covering all cases where an estranged child has been excluded from a will. The reasons for estrangement will be relevant, as will any reconciliation attempts.

disinherit, wills, cutting someone out of a will, can I cut my children out of a willEstrangement is not the only factor that may drive a parent to disinherit a child. Parents may wish to reduce or even eliminate a child’s share if one child demonstrates a lack of need or are already provided for, or even as punishment for past choices. Even, as in the case of singer-songwriter Sting, parents may choose not to leave wealth to their children if they believe their children should work to earn their own.

Other factors may make a parent wish to apportion their estate unequally between their children. Parents may wish to leave more money to children who provided care to them during their later years of life, or children living with a disability who require more provision. There are also a number of cases where wills have not been kept updated, and the last valid will does not reflect the deceased’s actual wishes for their children at the time of their death.

Estate planning is not always simple, and disinheriting your children is not a decision to be taken lightly. You should consult with an experienced solicitor when making your will in order to ensure your estate is distributed according to your wishes. You can find more information on family provision claims and on protecting your estate against estate claims here.

To talk to our experienced and friendly estate planning lawyers, contact us today for your free, 10-minute phone consultation.