You may not wish for your children to inherit from you on death, particularly if you do not have a positive relationship with them. In short, yes, it is possible for you to cut your children out of your Will, if you wish to do so.
The principle of testamentary freedom applies in the UK, which means that you are free to leave your estate to whoever you wish and there is no obligation to leave it to anyone. If you do not wish for your children to inherit then it is important to have a Will in place.
If you do not have a valid Will in place at the date of your death, then your estate will pass under the Rules of Intestacy. These rules determine who will inherit and the rules prioritise family members. If you do not have a surviving spouse or civil partner, your children will be next to inherit.
Even if you cut your children out of your Will, there is a possibility that disgruntled children would seek to challenge the validity of your Will later, or they could seek to make a claim against your estate under the Inheritance (Provision for Family and Dependents) Act 1975.
How Could my Will be Challenged?
There are different grounds on which your Will could be challenged:
That your Will is invalid
To be a valid Will, it must be in writing, signed by the testator (or someone else under your direction) in the presence of two independent witnesses, who must also sign the Will in your presence. You must also intend for the Will to be valid and binding and must have testamentary capacity. If any of these elements are missing, or if the Will has not been correctly witnessed, then your children may be successful in arguing that the Will is not valid and therefore does not stand.
If there was an earlier Will then this could then stand, or if not, then the Intestacy Rules may apply, either of which could benefit the children.
That you lack mental capacity
For the Will to be valid, you must have had the required testamentary capacity at the time of making it. This means that you must:
• Understand the nature of making a Will and its effects
• Understand the extent of the property of which the Will is disposing
• Be able to comprehend and appreciate any claims that may be brought against your estate
• Have no disorder of the mind
Your children could try to argue that you did not have the required testamentary capacity at the point of making your Will, particularly if you were suffering from an illness, or had a diagnosis that may have affected your capacity when you made the Will. Your children would need to raise a real suspicion that you did not have capacity.
When making a Will that cuts children out, it is advisable to have a capacity assessment carried out by a suitable professional to confirm your capacity to make the Will.
Undue influence
Your children could argue that you were unduly influenced to give the instructions to cut them out of your Will. For your children to be successful, they would need to produce sufficient evidence to satisfy the Court that actual undue influence occurred.
To avoid this, you should ask a solicitor to prepare your Will as they will ensure that you are seen alone to confirm your instructions.
Lack of knowledge and approval
If you are blind, unable to read or unable to write then your children could argue that you did not have the required knowledge of what was in the Will and/or that you did not approve the contents of it.
To overcome this, you should seek advice from a solicitor to prepare your Will as they can tailor an attestation clause to confirm that you did indeed have knowledge of the contents and that you approved the Will.
Inheritance (Provision for Family and Dependents) Act 1975
Children are potential claimants under the Inheritance (Provision for Family and Dependents) Act 1975 if they feel that inadequate financial provision has been made for them and they can satisfy the Court of this.
The children will have 6 months from the date of the Grant of Representation to make their claim, and it can be a costly and time consuming exercise.
At the time of preparing your Will, your solicitor should advise you as to the steps you can take to try to mitigate the success of any claim by the children i.e. a capacity assessment and a statement setting out your reasons for leaving them out of the Will.
Conclusion
If you require any further information following this article, please do not hesitate to contact me on 01283 214 231 or via email on s.wildsmith@timms-law.com.
