Can you cut your children out of your will?

I am sometimes asked: “Can I disinherit my children?” And the answer is: “Maybe”.

Monday, 17th August 2015, 10:52 pm
Gary Rycroft.

This issue has been subject of much media discussion after the case of a will and the dysfunctional relationship between a mother (Melita Jackson) and her daughter (Heather Ilott) was heard in the Court of Appeal. 

Mrs Jackson had left Heather out of her will, but the daughter was successful in claiming a chunk of her late mother’s estate.

In English law there is a long established principle of “testamentary freedom”, which means the person making a will is free to leave their estate to whoever they wish. However, the principle has been tempered for many years by a legal duty to provide and maintain certain categories of persons, usually a spouse or civil partner, children under the age of 18 and other persons who are financially dependent. 

Sign up to our daily newsletter

The i newsletter cut through the noise

Photo By Jonathan Hordle / Rex Features

For those persons, there is a requirement to make reasonable financial provision or they may bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975.

At the time of her mother’s death, Heather was an adult child and had no financial connections with her, but Heather’s personal circumstances were such that she was not very well off, reliant on benefits and was living in a rented house.

She argued it was reasonable for some financial provision to be made for her. The court agreed and awarded her just over £164,000 out of a total estate of just under £500,000.

I suggest the outcome would have been different if Mrs Jackson had made a nominal provision for Heather in her will, say a gift of £20,000. In other words, there should have been an acknowledgment by Mrs Jackson that her daughter had financial need.

Further, another crucial factor in the case was that the judges found Mrs Jackson’s choice of the three animal charities was “capricious” in that she had no particular love of animals or connection with the charities prior to her death.

So if Mrs Jackson had chosen an alternative beneficiary whom she had more connection with then disinheriting her daughter would have been more compelling and reasonable.