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Can I disinherit my child?

‘Can I disinherit my child?’ is a question that is asked of us way more than you might think. If you are in the position that you need to disinherit a child, you are not alone. In 2020, over 20% of our Will instructions involved disinheriting a child, or a spouse or former spouse.

The law is, in our opinion, confused on this issue. In English and Welsh law, there is a longstanding concept of ‘Testamentary Freedom’ which says that every Testator or Testatrix has the inalienable right to distribute their estate exactly as they wish. And this includes the ability to include or exclude anyone from their Will.

However, the introduction of the Inheritance Act 1975 threw a considerable spanner in the works. This Act of Parliament basically states that there are a number of ‘classes’ of people who can have a reasonable expectation of benefitting from your Estate.

These include Children (in this case natural, step-children and adopted children, spouses (and are you ready for this? It also includes ex-spouses who are unmarried!), and confusingly, anyone who at the time of your death can claim they are wholly or partially dependent on you. Of course, this third class could leave the door open to lodgers, friends, or employees of a sole trader to make a claim. Luckily there hasn’t been a major test of this, but for children it is a different story.

A fairly recent case ( Nahajec v Fowle) heard at Leeds County Court in 2017 shows the issue with legislation overriding the wishes of the deceased in their Will. Elena Nahajac was one of three adult children of the late Stanley Nahajac when he died with an estate valued at around £265000. Stanley however had left his whole estate to a friend, Stephen Fowle. Stanley’s wishes were very clear in a 2015 Will, written a few weeks before his death. Adjoining the Will was a correctly drafted memorandum of wishes stating, ‘I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare.’ This was backed up by Elena’s half-brother, who agreed that Elena had not had meaningful contact with Stanley for a considerable time, after losing contact following his divorce.

Elena initially claimed £70227 from the estate, using the ‘reasonable provision’ element of the Inheritance (Provision for Dependents) Act 1975. She was 31 years old at the time of the trial, working two jobs, and was in debt by over £6000. The judge in this case ruled that there was no question that Stanley had acted unreasonably when making his will, ‘but rather whether, looked at objectively his … lack of disposition (for Elena) produces an unreasonable result.’

Ultimately Elena was awarded £30,000. This shows that legislation will trump wishes in a Will (or at least in some situations).

So what can be done about this?

A simple Will is effectively a mere expression of wishes. So, if you have a situation where you have estranged children, or an unmarried ex-partner (this is not a comprehensive list of potential claimants), you need to put in place MORE protection than any Will can afford. You need to book a free call with us to explore your options, but it is very likely that some Trust Planning will be required.

You can find our full contact details here, or call us on 01134360350

Don’t leave the distribution of your estate to chance. Get instructions drawn up to cover the worst-case scenarios that may occur in your life

#estrangement, #inheritance act, #IPFDA, #testamentary capacity

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