Can I Disinherit My Children?

If you are considering whether you can disinherit your children from your Will, you are not alone.

Family relationships can be complex, and there are many reasons why someone may choose to leave a child out of their Will.

In England and Wales, the law allows you to decide who should inherit your assets after your death, a principle known as ‘testamentary freedom’. However, disinheriting a child is not always straightforward, and in some circumstances, a disinherited child may be able to challenge a Will or make a claim against an estate.

In this article, we explain whether you can legally disinherit your children, the circumstances in which a child may contest a Will, and the steps you can take to reduce the risk of future disputes.

Understanding your legal options and obtaining specialist advice can help ensure your wishes are clearly documented, and your loved ones are protected.

Can You Legally Disinherit Your Children?

Testamentary Freedom Explained

The principle of ‘testamentary freedom’ applies in England and Wales, which means that individuals can decide to leave their assets to whoever they choose under their Will. There is no legal obligation on individuals to make provision for their children under their Wills.

What Happens if You Die Without a Will?

If an individual dies without a valid Will, then their estate will be distributed in accordance with the rules of intestacy. The rules of intestacy determine who should inherit in these situations, by creating an order of priority of who should inherit including a surviving spouse and children.

If the deceased did not leave children, the intestacy rules allow for wider family members to inherit and if there are no such family members then the estate will pass to the Crown.

Why Having a Valid Will is Essential

It is therefore very important to create a Will if you do not wish for your children to inherit as otherwise they could potentially automatically inherit under the rules of intestacy.

Can Adult Children Make a Claim Against an Estate?

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to bring a claim against an estate where the deceased made no provision, or inadequate provision, for them.

Who Can Contest a Will?

Children are entitled to bring claims under this Act, as are stepchildren, surviving spouses/civil partners, cohabitees of over two years, any person who has been financially maintained by the deceased or any person who has been treated as a child of the family by the deceased. Claimants have a period of 6 months from the date of the Grant of Representation to make their claim, though the Court has discretion to extend this.

How Common Are Inheritance Disputes?

Inheritance disputes are not uncommon, however bringing a claim against an estate is often a costly and time-consuming exercise. Disputes therefore often settle outside of Court (i.e by an agreement being reached between the executors/beneficiaries under the Will and the claimant), but the costs can still mount up if both parties have solicitors representing them.

What Happens if a Challenge is Successful?

If the matter proceeds to Court, the Judge may grant an order to alter the distribution of the deceased’s estate, if they decide that reasonable provision was not made for the claimant. The Judge will consider the circumstances including matters such as the size of the estate, relationship of the claimant and the deceased, the conduct of the claimant and the financial needs of the claimant.

Can Disinherited Children Challenge a Will

Disinherited children could also challenge the validity of a Will.

If it can be shown that the Will was not validly executed or that the deceased lacked capacity when the Will was made then it may be disregarded, and any prior valid Will will stand (if there was one). If not, then the rules of intestacy may apply.

Grounds on Which a Child Could Challenge a Will

The Will is Invalid

For a Will to be valid, it must be made in writing and signed by the testator (or someone else under the testator’s direction) in the presence of two independent witnesses, who must also sign the Will in the testator’s presence. The testator must also intend for the Will to be legally binding and must have the required testamentary capacity to make a Will.

If any of these elements are missing, or the Will has not been correctly witnessed, then a child may be successful in challenging the validity of the Will, and therefore the Will would not stand.

Lack of Testamentary Capacity

The person making the Will must also have the required testamentary capacity to make a Will. To have testamentary capacity 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

If you are suffering from an illness or have received a diagnosis at the time of making your Will then this could sadly increase the risk of a successful claim that you lacked capacity at the time it was made. It is therefore advisable to seek a capacity assessment from a medical professional to mitigate the changes of success, particularly if you are excluding any children from your Will.

Undue Influence

Your children could also argue that your Will is invalid if there is evidence to suggest that you were unfairly influenced or pressured to make a Will by another person and to cut them out of the Will. For this reason, a solicitor should always insist that you are seen alone (or with your spouse only, in the case of mirror Wills) to give instructions for your Will.

Lack of knowledge and approval

This argument could arise if, for example, you are blind or unable to read or write. In these circumstances, your children could argue that you did not have the required knowledge of the contents of the Will and therefore that you could not have approved the contents of it.

To avoid this risk, you should speak openly with your solicitor about any additional needs that you may have, so that the solicitor can make arrangements accordingly and tailor an attestation clause to confirm that you did indeed have knowledge of the contents and that you approved the Will.

How to Reduce the Risk of Your Children Challenging Your Will

Use an Experienced Will Solicitor

Instructing a solicitor to write your Will can reduce the risk of a successful claim, as a solicitor can advise you appropriately about the potential for claims to be made, and help you to mitigate this. A solicitor will keep an accurate record of all conversations between you and them, including documenting your wishes and reasoning.

If a claim is made, the first step is often that the solicitor’s file is requested to investigate the circumstances around the making of the Will, and having this documentation available is often very valuable if the Will is challenged.

A solicitor will also prepare a letter of wishes for you to sign alongside your Will, explaining your reasons for making no (or minimal) provision for your children. This document would be produced if a claim was made against the estate and this may even deter the claimant from proceeding, but if they do proceed to Court then the Judge will take this document into account when reaching their decision.

A solicitor should also ensure that you are seen alone when giving your instructions, to reduce the risk of a successful claim on the basis of undue influence.

Obtain a Medical Capacity Assessment

Further, as above, if there is a risk of the Will being challenged then it is advisable to have a capacity assessment carried out by a medical professional at the time of making your Will, as evidence of your testamentary capacity to do so.

When Might Disinheriting a Child be Appropriate?

A person may choose to inherit their child for several reasons, including the following:

• Estranged relationships - If an individual has had no relationship with their child for many years, then they may not wish for them to inherit.
• Previous lifetime financial support - If a substantial gift or regular financial support has been provided to the child during an individual’s lifetime, then they may decide not to make further provision for their child under their Will.
• Protecting other family members - Some individuals may wish to protect their estates for other beneficiaries who they feel may benefit more from their inheritance, such as grandchildren.
• Blended families and second marriages - Individuals may decide not to make provision for stepchildren, and instead to preserve their estates for their own children, if they have a blended family to reduce the risk of their surviving spouse changing their Will. However, there is often a better way to protect your estate in these circumstances, such as making life interest trust Wills.

How Timms Can Help

While the law in England and Wales generally allows you to decide who inherits your estate, disinheriting a child can be a complex decision with potential legal implications.

A child who has been excluded from a Will may, in certain circumstances, be able to challenge its validity or make a claim for financial provision. Taking professional advice when preparing or updating your Will can help ensure your wishes are clearly expressed, reduce the risk of future disputes and provide greater certainty for your loved ones.

If you are considering disinheriting a child or have concerns about how your estate will be distributed after your death, the Timms Wills and Probate team can help. We will take the time to understand your circumstances, explain your options and ensure your Will reflects your wishes as effectively as possible.

Frequently Asked Questions

Can I leave my child £1 in my Will?

Yes, you can leave your child a nominal sum such as £1 but this does not prevent them from challenging your Will or making a claim against your estate. The amount left to a beneficiary is only one factor that may be considered if a dispute arises.

Can an adult child contest my Will?

An adult child may be able to contest a Will if they believe it is invalid due to issues such as lack of capacity, undue influence or improper execution. They may also be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in certain circumstances.

Does disinheriting a child automatically prevent a claim?

No. Even if a child is expressly excluded from a Will, they may still be able to bring a claim against the estate. Whether a claim succeeds will depend on the individual circumstances and the evidence available.

How long do children have to challenge a Will?

The time limit depends on the type of claim being made. For example, claims under the Inheritance Act generally need to be issued within six months of the Grant of Probate, although exceptions can sometimes apply.

Can stepchildren make a claim against an estate?

In some cases, yes. A stepchild who was treated as a child of the family may be eligible to make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Can I disinherit one child but leave assets to my other children?

Yes. You are generally free to leave your estate to whichever beneficiaries you choose. However, if one child is excluded, there may be a greater risk of a dispute or claim, particularly if they were financially dependent on you or have a reasonable expectation of provision.