Can I disinherit my child?
Writing a Will is a defining moment in life; the type that should come with a backing track and soft lighting. It forces you to really consider your legacy and what will happen after you are gone.
The assumption of most is that you have complete power over your Will. That your words will reverberate for your children, grandchildren and (if worst came to worst) in the courts. However, this is not necessarily the case.
Certainly, we live in a democratic country and are afforded what is referred to as testamentary freedom.
However, this only stretches so far before the hand of the law steps in. If your Will undermines the financial welfare of a close family member (for example a spouse or child), especially if that child was financially dependent upon you there may be grounds to contest. This does not mean that a child has an automatic right to inherit money; just that a parent has a responsibility to provide for their child even after they are gone.
In other words in much the same way you have the right to leave your child out of your will, they have the right to appeal your decision.
A child could also contest your will based on five factors:
1. Forgery or Fraud
This means a claimant can argue that the signature is not valid. This happened, recently, in 2007 when the son of an, immensely rich Mr. Leonard Supple was left only £100 a year whilst his illegitimate half-sister was left the rest of his, pretty considerable, £18 million estate. The judge ruled the will was forged on the (rather rational) argument that it just didn’t resemble others he had written. It meant Mr. Supple died without will and his inheritance was instead split two ways. This also refers to wills made based on lies- if Peter told Paul a lie to increase his share of a will, this is fraud.
2. Undue Influence
When a third party is thought to have exerted pressure on the deceased in the writing of their will. It essentially invalidates the will as no-one should be pressured into making a decision regarding the inheritance rights of their family.
3. Testamentary incapacity
The legal way of saying the person really had no idea what was going on and wasn’t able to write a will. This is something experts expect to increase as people are living to an increasingly old age.
4. Knowledge and approval
If a judge believes the deceased did not understand the will fully due to use of excessive legal jargon or bad representation. This also alludes to any suspicious circumstances- for example if your Great Aunt Edna happened to leave the executor of her will her rare doll collection there would be grounds to contest.
5. Negligently Drafted
This means the person writing the will didn’t understand fully the legal and moral obligations involved. If there are any problems at all with the will, lawyers are trained to pick them apart and find holes in the law invalidating the will.
Ensuring your will is written professionally, proficiently and perceptively is extremely important. Working with a will writer cannot ensure your hopes will not go uncontested, but it will make it significantly more difficult. Remember: if you want to have control over your future legacy; it is important to take control now.