Can I Disinherit My Kids?
“Can I Disinherit My Kids?” Head Of Wills and Probate Jo Robinson discusses in her latest Timms blog…
The simple answer to this is yes! Testamentary freedom is permitted in England and Wales and means that you can leave your estate to whoever you wish – there is no obligation to leave it to your family.
However, beware as a Will is always open to challenge and Will disputes are becoming more and more common.
Grounds for challenging a Will include:
Validity
In order for a Will to be valid, it must be in writing, signed by the testator (or someone else in their presence and at their direction) and the testator must intend for the Will to be valid. The Will must also be signed in the presence of two independent witnesses, who must also sign the Will in the testator’s presence. If any of these elements are missing then the Will may be declared invalid.
Lack Of Mental Capacity
Anyone challenging a Will on this ground must raise a real suspicion that the testator lacked capacity. If they are able to do this then the burden falls to those seeking to prove the Will to show that the testate did have capacity. The test for capacity was set out in Banks v Goodfellow and requires that the testator must be able to: understand the nature of a Will and its effect; understand the extent of his/her property; appreciate any claims to which he/she ought to give effect; and have no disorder of the mind.
Undue Influence
For a challenge to succeed, sufficient evidence must be produced to satisfy the Court that actual undue influence occurred, and that the testator acted against their own volition and that they were coerced into making a Will that they did not wish to make.
Lack Of Knowledge And Approval
For a Will to be valid, the testator must have understood and approved the contents of the Will. This is different from having sufficient mental capacity and may be applicable if the person making the Will was blind, illiterate or could not speak for example. If this challenge is raised then it is for those proving the Will to establish that the testator did indeed have knowledge and approval of the Will.
Insufficient Financial Provision
The Inheritance (Provision for Family and Dependants) Act 1975 allows for certain categories of people to bring a claim against an estate on the grounds that insufficient financial provision has been made for them in the Will. A claim on this ground must be made within six months from the date of the Grant of Representation being issued and they must meet specified criteria.
To Conclude
As you can see, there are a number of ways in which a Will can be challenged and so if you wish to disinherit your kids then it is essential that your Will is professionally prepared and that the appropriate steps are taken to ensure that your Will is as watertight as possible.
How Can Timms Help?
If you have any questions regarding this blog or, if you require more information, please don’t hesitate to contact me on 01332 364436 or at j.robinson@timms-law.com. Alternatively, you can visit the Wills and Probate page of our website here.
July 2022