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Can You Disinherit A Child? – A case in point.

Reasons to choose Wilson Browne

It is a well-established principle of English law that a person may leave their Estate in any way that they choose to.

Although claims are possible against Estates it is only in specific circumstances that the Court will overturn a Will or intestacy and order that different provisions should apply.

Parents often leave their Estates divided equally between their children but where family relationships are more complicated, where one child has less need than another or where one has contributed more to their parents’ wellbeing over the years you can find that Wills are drafted to reflect unequal divisions.

The dispute between the Rea siblings, determined by a Court in October 2019, is such a situation.

In Rea v Rea, Rita Rea brought an application that her late mother’s Will dated 7 December 2015 (“the 2015 Will”) should be pronounced in solemn form (an application which asks the Court to formally approve the Will and confirm that it cannot be subject to later contest).

The 2015 Will left Rita her mother’s home – worth approximately £750,000 at the date the Will was made.  This was a change to Mrs Rea’s previous Will dated 29 May 1986 (“the 1986 Will”) which had left her Estate to each of her 4 children – Rita and her brothers Remo, Nino and David – in equal shares.

The 2015 Will included a clause to explain the change which read:

“I DECLARE that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this Will.”

In fact Remo, Nino and David did not dispute Rita’s account of the care she provided to her mother.  The brothers did not see their mother often and there was a breakdown in a plan made to set up a care rota to give Rita a break.  As a result the siblings fell out and it was not long after that Mrs Rea changed her Will.

When Mrs Rea died, however, Remo, Nino and David tried to seek probate of the 1986 Will and claimed that the 2015 Will was invalid on the grounds that:

  1. Their mother lacked testamentary capacity  (though ultimately the brothers did not pursue this objection);
  2. Their mother did not know and approve of the contents of the 2015 Will;
  3. The 2015 Will was made as a result of undue influence exerted by Rita over Mrs Rea; and
  4. The Will was procured by a fraudulent calumny by Rita on Mrs Rea.

Knowledge and approval

The Court concluded that Mrs Rea did have knowledge and approval of the content of her Will.  Evidence was given that Mrs Rea spoke and understood very little English but the solicitor who drafted the Will and Mrs Rea’s GP both gave evidence.

They confirmed that Mrs Rea was able to understand as long as they spoke slowly to her and used simple language.

Undue influence

The evidence of the person who drafted the Will and the GP was again heard on this point.  They stated that Mrs Rea had made her own decision in changing the Will and the Court held that the brothers’ claim that Rita had unduly influenced their mother was rejected.

Fraudulent calumny

To show fraudulent calumny the brothers would have had to show that Rita had poisoned their mother’s mind by making dishonest statements about them.  Given the state of the relationships between the brothers and their mother this was not made out and the Judge found that there was no evidence to support that Rita had done so.

Can you disinherit your child?

The claims made by the brothers failed and the 2015 Will was admitted to probate.

It clearly is possible to disinherit one or more of your children but that does not mean they will accept it.  In this case Mrs Rea had set out her reasons and thankfully there was clear evidence from the person who drafted the Will and from the GP as to her state of mind when she did so.

If you are going to seek to disinherit one or more children, setting out your reasons and evidencing them when you draft and execute the Will is likely to be priceless if there is a challenge later on.

It is essential to make sure any children who are still being included are not present when instructions are given and that the solicitor see the testator alone to take instructions (and records this fact).

So, in answer to the question “can you disinherit your child?” – yes, but do it carefully.

Jennifer Laskey

Posted:

Jennifer Laskey

Partner

Jennifer is a Solicitor and Partner with 21 years experience advising clients in relation to litigated Will disputes. A Legal 500 recognised lawyer, Jennifer is a full member of ACTAPs and has resolved multi-million pound disputes for clients in Courts across England.