Disinheriting a Child | My Will and Wishes

The general view, even from a lawyer, is that an Englishman remains at liberty at his death to dispose of his own property in whatever way he pleases. Yet a recent case in the Court of Appeal has granted one third of a mother’s estate to the adult daughter from whom she was estranged for 26 years, and whom she expressly disinherited.

Since 1975* the terms of a Will have been subject to amendment by the courts if a claimant can prove the Will does not make reasonable financial provision for him. Spouses and children are amongst those who can claim under the Act. In Ilott v Mitson (27 July 2015) the Court of Appeal allowed a claim by a married adult woman who had been living independently and had no expectation of receiving anything from her mother.

This case seems wrong because:

The daughter had left home suddenly at the age of 17 and never returned;
They had attempted reconciliation several times over the years but to no effect;
The mother told her daughter to expect nothing from her Will, wrote a note with the Will to say she had deliberately excluded her daughter, and given clear instructions to her solicitors to fight any future claim by her;
The daughter nevertheless ended up with about one third of her mother’s estate, some £150k.

However, looking more closely at the judgment it is clear that it remains possible for testators to exclude specified individuals from their Wills. Factors in the daughter’s favour on this occasion were that:

It was agreed that she was living in financially straitened circumstances which were unlikely to improve, and financial provision for her maintenance could be made out of the estate;
There were no other beneficiaries or other applicants under the Act whose needs must be balanced with hers, since virtually all the estate had been left to charities with whom the mother had no previous connection and for whom any gift was a windfall;
The trial judge found that the mother had behaved in an “unreasonable, capricious and harsh way” towards her daughter;
The mother had family ties to her daughter, though no responsibility for her as an adult child living independently; and
The award could be based on the stated cost to the daughter of buying her rented Housing Association home, relieving her everyday expenses without affecting her State benefits.

Whilst this decision has meant lawyers will find more difficulty advising their clients of the likely outcome of a claim under the Act, it is clear that if you wish to exclude an adult child from your Will you should:

Explain in writing clearly and reasonably why you wish to do so (eg, if they have already had their share of the estate, or you can show they have acted unreasonably towards you); and
Explain your links to any other beneficiaries and why you wish them to have the money. The court will seek to balance the claims on the estate fairly.

Any award under this provision will be for maintenance only: the court will not be concerned to fully support the needs of an adult claimant living independently. However, if the claimant is living in difficult circumstances then it is now more likely that they will receive a share of the estate.

*Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”)

** Ilot v Mitson [2015] EWCA Civ 797