Can you disinherit your minor children?

The recent case of Re R (Deceased), J & another -v- S shows that despite a near total breakdown in contact between a father and his two sons and despite him having included an express provision in his will that no provision was to be made for them, the deceased was not able to disinherit his two children entirely.

Following the divorce of the children’s parents they moved with their mother and her new partner from Norfolk to Scotland such that contact between the deceased and his two children effectively ceased four years before the date of his last will which was made shortly before his death.  The deceased’s estate included two companies which made valuation of his estate problematic.  In general terms it was valued at somewhere between £500,000 and £750,000.

Under the terms of his will the deceased left his estate to his parents and his new partner who were the defendants to the claim.  In his previous will made in 2013 the deceased gave the residue of the estate to his two children.

Under the Inheritance (Provision for Family and Dependants) Act 1975 a child of the deceased is entitled to apply to the court for an order that reasonable financial provision be made for them if the terms of the deceased’s will do not make reasonable financial provision.  ‘Reasonable financial provision’ is limited to such provision as it would be reasonable for the applicant to receive ‘for their maintenance’.

At the time the claim was issued both sons were under the age of 18 and at school.  By the time of the hearing the older son had reached majority and was attending university.  Although the claim as put sought to shift the entire maintenance obligation to the deceased, the judge concluded that that was not right and that the mother and her new husband should continue in effect to shoulder some of that responsibility.

The judge having decided that the will did not make reasonable financial provision stated, “Only in the most exceptional circumstances would I expect the Court to accept that the obligation to maintain had been completely severed.”  The concept of a clean break is not generally applicable in respect of child maintenance.  The Court also decided that it had power under the 1975 Act in appropriate cases to back date its award of maintenance to the date of death or such later date as it considered appropriate.  Having carried out a detailed analysis of a number of schedules of estimated expenditure submitted on behalf of each applicant, son J was awarded £68,022 and son H £117,962.

The judge found it regrettable that the deceased’s partner and his parents chose to argue that the deceased had no obligation to make any provision for his sons but suggested that this was in part a reaction to the size of the claim as originally put.  Having rejected a claim for the purchase of a flat for the sons the court ordered the estate should in essence bear half of the sons’ home living costs, university and driving costs and living costs for a year after university which included an element for the cost of private education.

Speak to our Family Disputes Team

Paul Grimwood is a Partner in the family dispute team at IBB Law and as such is able to provide advice if you find yourself in this situation.  Contact Paul on paul.grimwood@ibblaw.co.uk or call 01494 790047.