Can a parent disinherit a child? | BLB Solicitors (2024)

Unlike in some other countries, the law in England and Wales provides everyone with complete testamentary freedom. In other words, we can leave our estate to whomever we please. This means that you are perfectly entitled to exclude one or more of your children from inheriting from you.

Taking such a step is more common than you might think, and there’s the scenario where a parent leaves more to one child than another. There are numerous reasons why parents may do this, and it may even be by agreement between the parent and the children. Perhaps one child has given up a career to look after an ailing parent and their siblings agree that in return it’s only fair they should receive a larger proportion of the estate in due course.

But while you may leave your estate to whomever you wish, you should always bear in mind that the law makes provision for those who might reasonably expect an inheritance from you but are excluded or receive less than they need.

Inheritance Act claim

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) enables certain categories of people to make a claim on the estate where the Will (or an intestacy) leaves them without “reasonable financial provision”. To bring a claim, you must be:

• a spouse or civil partner of the deceased; or
• a former spouse or civil partner of the deceased (who has not remarried or re-entered into a civil partnership); or
• a person living with the deceased for at least two years prior to their death as their spouse or civil partner; or
• a child of the deceased or a person who was treated as a child of the deceased; or
• a person who was being “maintained”, directly or indirectly, by the deceased immediately prior to their death.

In the case of a child, there is a common misconception that only minors can make a claim under the Inheritance Act. However, age has no bearing on an Inheritance Act claim. Neither does legitimacy, even if they were not acknowledged as their child by the deceased. However, in that situation, the child will need to prove that the deceased was their biological parent, which is usually through a Court-approved DNA test. The law also treats adopted children of the deceased in the same way as biological children.

What is reasonable financial provision?

In respect of all the above categories except spouses/civil partners, the Inheritance Act defines “reasonable financial provision” as being “such financial provision as it would be reasonable in all the circ*mstances of the case for the applicant to receive for his maintenance”.

Like many statutory definitions, that’s not hugely helpful! In fact, valuing an Inheritance Act claim is notoriously difficult. Detailed information on the claimant’s financial resources and expenditure is crucial, as well as historic information on the standard of living they enjoyed while supported by the deceased. Legal advice should always be sought at the earliest opportunity as claims must be brought within six months of probate being granted.

Challenging a Will

Although not strictly the subject of this article, there are also several grounds upon which a Will can be challenged:

• Lack of testamentary (mental) capacity at the time the Will was made.
• Although the deceased had testamentary capacity at the time the Will was made, for other reasons they did not properly understand and approve of the content of the Will.
• There is evidence that the deceased only made the Will or included certain clauses as a result of undue influence.
• There is evidence that the Will was forged.
• The Will did not reflect the deceased’s wishes as a result of a clerical error when it was drafted or there was a failure by the person drafting it to understand their intentions.