It is a long-established principle of English law that a person may leave their Estate in any way that they choose to.
Claims can of course be brought if a Will or intestacy fails to provide for someone who is in genuine need of reasonable financial provision from the Estate, but in the vast majority of cases, a properly executed Will made by someone with the requisite testamentary capacity will stand.
The answer is, it depends.
In the 2019 case of Rea v Rea the Court upheld a Will that left an entire Estate to only one of four children of the deceased. Rita Rea brought a claim that her late mother's Will dated 7 December 2015 should be upheld, after her siblings challenged its validity. The Will included a clause explaining a change from earlier Wills – which had provided that the Estate be split equally between Rita and her siblings Remo, Nino and David – which read;
“I DECLARE that my sons do not help with my care and there have 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 my sons challenge my estate I wish my executors to defend such claim as they are not dependant on me and I do not wish for them to share my estate save what I have stated in this Will.”
The brothers alleged that the 2015 Will was invalid on the grounds that their mother lack testamentary capacity, that she did not know and approve of the content of the Will, that Rita had unduly influenced mother and that Rita had poisoned mother's mind against them.
Evidence was called to show that in fact mother did have capacity and was fully aware of the nature and content of her Will. The Court found no evidence of undue influence and in view of the state of the relationship between Mrs Rea and her sons it was clear that Rita had not poisoned her mother's mind against her siblings. The Court upheld the Will.
No claim was made in that case under the Inheritance (Provision for Family and Dependants) Act 1975, Remo, Nino and David not being able to show that they had any genuine need for financial support.
More recently it is reported that Doreen Lofthouse, the driving force for many years behind the growth of Fisherman's Friend lozenges, has left her £41 million estate to her charity – the Lofthouse Foundation – and not her own son.
Doreen Lofthouse transformed the fortunes of Fisherman's Friend from a Lancashire dock-based business to an international success which sells in over 120 countries. The Company reports profits of £5 million a year and her son Duncan Lofthouse continues to work in the business as Managing Director with control of the company.
It appears that Doreen Lofthouse provided for a variety of staff who have worked for her over the years and left some bequests of jewellery but that the Estate itself passes to the charity.
No challenge is suggested to the validity of the Will but even with an estate of such proportions, there is no right to a share just because you are a child of the deceased.
A child with a genuine concern as to the validity of a Will can of course challenge the Will and – as in Rea v Rea – the Court will consider the evidence and determine whether the Will itself is valid. The mere fact that a Will fails to provide for a child is not evidence that the Will is invalid.
A child who is left out of a Will may have a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, and minor children would usually expect to succeed in such a claim. Adult children – especially those who are not financially dependant up on their deceased parent – will have a harder time bringing a claim and will need to show that they have a genuine financial need.
Howes Percival partner Satnam Chayra comments:
“Parents to do often leave their Estates to their children but they are not obligated to do so if their children are grown up and financially independent. Whilst it may be hurtful to be left out of a parent's Will, it is not illegal for a parent to make a Will in that way.
Children who have genuine concerns that a parent may have been influenced by someone else to leave them out of a Will should of course investigate the circumstances further. A parent who lacked capacity may well not have a valid Will and a challenge may then be possible. Otherwise, the law is clear – in the absence of clear evidence that a Will has not been validly made, the terms of the Will stand.”
Where claims are considered, it is important to seek early legal advice and to consider all options. In some cases, it can be possible to agree with other beneficiaries that the terms of a Will should be varied to provide for all children or in fact to agree that a Will was not actually valid. The possibility of agreement – either through negotiation or mediation – should be actively considered to ensure that unnecessary legal costs are avoided and, importantly, that family relationships are preserved so far as possible.
For more information, please contact a member of our Contentious Trust & Probate team.
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