While we would all like to hope that our relationships with our parents stand the test of time, it is not uncommon for a child to find that their mother or father has made no, or very little, provision for them on death. This can understandably lead to confusion, hurt and even anger but is it worth pursuing a challenge to the will? What are your legal rights if your parents disinherit you?
What are a child’s inheritance rights?
There is a common misconception that, as a child, you are automatically entitled to receive something from your parents’ estates. In fact, there is no legal obligation on a parent to provide for their child, or children, after they die and when they are making a will. This may seem unfair especially when various other countries have rules of forced heirship, which dictate that a parent’s property is to be divided up in a certain way, including to their children. However, the ability of a parent to leave their estate how they wish is consistent with the principle of testamentary freedom which continues to be upheld by the Courts of England and Wales. In other words, the English law provides that anyone has the right to leave their assets as they wish.
If, however, someone dies without leaving a will then their estate will pass in accordance with the Rules of Intestacy. These rules provide that the first £270,000 of the estate together with all of the deceased’s personal possessions, whatever their value, pass to the deceased’s surviving spouse or civil partner. The remainder of the estate is divided into two halves; one half passes to the surviving spouse or civil partner and the remaining half is divided equally between any surviving children ( if a child has already died then their share will pass to their children, the deceased’s grandchildren). If the deceased dies without leaving a spouse or civil partner then the entire estate will be divided equally between the children of the deceased.
Is there anything I can do if my parents disinherit me?
Notwithstanding the fact that the principle of testamentary freedom referred to above remains enshrined in the English legal system, this does not mean that the will of a parent who chooses to exclude their child cannot be challenged or a claim made against their estate. Every case will, of course, be judged on its own facts and merits but it is becoming increasingly common for a child who has been excluded from a parent’s will to explore ways in which they can obtain an entitlement to the estate via a legal claim.
A claim for financial provision from the estate
A child of the deceased is one of the classes of claimants who are entitled to bring a claim for reasonable financial provision from an estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. This piece of legislation allows children of the deceased to seek an award from their parent’s estate for the purposes of their maintenance in circumstances where a will, or if there is no will, the Rules of Intestacy do not make reasonable financial provision for them. If a claim is successful, the child will end up receiving some sort of provision from their parent’s estate whether that be in the form of a sum of money, the right to live in a property or anything else that the Court has the discretion to award. It is important to note, however, that success is not guaranteed just because you are a child who has been disinherited by your parent. The Court will consider a number of different factors before deciding whether the distribution of the parent’s estate should be varied to make provision for the child including (but not limited to) the financial needs and resources of both the child and the other beneficiaries of the estate, the relationship the child had with the parent and any reasons the parent gave for their testamentary choices.
A will challenge
It may also be possible to challenge a will which does not provide for a child but only if there are legal grounds to do so. For example, a will may be invalid for lack of testamentary capacity or because it was procured by undue influence. Again, the fact that a will does not provide for the testator’s child will not be enough, in itself, to show that it is invalid but it may be a relevant factor if it can be shown that the exclusion of the child was a result of their parent lacking testamentary capacity or being subject to the undue influence of a third party. If a will is successfully challenged then any earlier valid will made by the deceased will be admitted to probate in its place or, if there is no earlier valid will, the estate will be divided in accordance with the Rules of Intestacy.
It is also not unheard of for a parent to make promises to a child during their lifetime that certain land or property will pass to them on their death. That child may have a claim against the estate in the event that those promises are not satisfied when the parent dies provided that certain other criteria are also met.
If you are considering writing your child out of your will, it is essential to take specialist advice to reduce the chances of a claim being brought against your estate after you died. A member of our Private Client Advisory Team would be glad to discuss this with you.
The specialist Contentious Trusts and Probate Team at Birketts have extensive experience advising children in situations where they have been excluded from their parent’s will or do not stand to receive what they expected from an estate. They also advise executors and other beneficiaries who are defending claims made by children. If you find yourself in either of these scenarios please get in touch and a member of our team will be happy to assist.