I am 80 years old and have two children. My eldest son has been a constant support to me but the relationship with my youngest son has been extremely difficult for many years.
He has been abusive and, at times, even violent towards me. In view of his behaviour, I drafted a new will over 10 years ago leaving everything to my eldest son.
I don’t want my youngest to benefit from my estate as we have minimal contact and I feel no obligation to leave him anything.
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In addition to the will, a separate memorandum was completed with the assistance of my solicitor explaining the reasons why my youngest son had been excluded.
I’ve also taken other actions with my assets by gifting property to my eldest son in 2014. When a relative died I received a substantial inheritance and completed a deed of variation in 2016 diverting further property to my eldest son.
I’ve seen various press articles suggesting that disaffected family members are achieving more success in challenging wills which do not make any provision for them.
My youngest son has stated that ‘when I’m dead he’ll be back for his share’ and I’m concerned that he may still inherit despite my wishes.
My youngest son is working though I’m not sure if he is employed or self-employed.
On the face of it he appears to be financially comfortable and I would say that he ceased to have any dependency on me from the point he ceased to live in our family home more than a decade ago. I do not and have not provided him with any income or financial assistance.
Daniel Winter: ‘The starting point is that you are free to leave your assets to whomever you wish in your will’
My questions are:
What, if anything, more can I do to ensure my last wishes are achieved and my whole estate passes to my eldest son?
Is it possible for my youngest son to challenge the deed of gift and/or the deed of variation?
I’m in relatively good health, have no capacity issues and all documents have been drafted and witnessed by my longstanding family solicitor.
Daniel Winter, partner at law firm Nockolds, replies: I am sorry to hear of the deterioration in your relationship with your youngest son.
English law recognises the concept of ‘testamentary freedom’, which means the starting point is that you are free to leave your assets to whomever you wish in your will.
However, there are two possible ways in which your son might seek to contest your will.
1) He could seek to challenge the will on the basis that it is not valid. This could be either because:
* You did not have the necessary capacity to make a will
* You did not know and approve the contents of your will
* You were unduly influenced by another and the terms of the will did not reflect your true wishes
* Your will failed to comply with the proper formalities.
From the information you have given, and provided that the will complies with the required formalities – is in writing and was signed by you in the presence of two or more witnesses who were present at the same time and who each signed to witness your signature in your presence – your son would not have any grounds to challenge the will’s validity.
2) Under the Inheritance (Provision for Family and Dependants) Act 1975, an adult or minor child can bring a claim against the estate of their deceased parent if the will fails to make reasonable financial provision for their maintenance.
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Such a claim would involve consideration of the following factors: the financial resources and needs of both of your sons, any obligations which you owed towards your sons, the size and nature of your estate and any physical or mental disabilities of either of your sons.
The law in relation to claims by estranged adult children was considered by the Supreme Court recently in the well-publicised ‘Ilott v The Blue Cross and others’ case.
The Supreme Court’s website gives the details here.
The judgment in this case confirmed that a person’s wishes as stated in their will cannot be ignored.
Whilst this does not mean that testamentary freedom is absolute, whom you intend to benefit in your will is a very significant factor.
Financial difficulties experienced by an adult child claimant may not be enough on their own to succeed with a claim.
If your son owns property, is employed and does not have any disabilities, it is very unlikely that he would be successful in bringing such a claim.
While this may be the case now, you can never entirely rule out a claim being made on your estate because your son’s circumstances may change, as may the law, between now and the time of your death.
This is why it is vitally important to review wills regularly.
Why you should review your will now
You have already recorded your reasons for disinheriting your son in a letter of wishes and have informed your youngest son that he is not entitled to inherit under your will.
You have therefore taken the usual steps I would recommend to help protect against such a claim.
However, as it may be quite some time since you made your will, and you anticipate that your son may investigate making a claim in the future, it would be a good idea to review it with your solicitor even if the result is that you do not make a new will and your existing one remains in place.
Your solicitor will make a note of your instructions on file so that there can be no doubt that your intentions have not changed towards your son.
This could be valuable evidence after your death should your son try to assert, falsely, that in the period since you made your will there had been attempts at reconciliation or a renewal of affections towards him.
Can the gifts to your eldest son be challenged?
Gifts made by someone during their lifetime can be challenged on the basis that they were not valid.
This could be either because the person making them did not have capacity at the relevant time to make a gift, or was unduly influenced to make those gifts by another, or where the gift was made by an attorney exceeding the limited scope for making gifts under a power of attorney.
If successful, the value of the lifetime gift would be brought back into the estate.
However, from the information you have given, there does not appear to be any grounds upon which your youngest son could challenge the validity of the gifts made by the Deed of Gift and Deed of Variation.
Gifts made within seven years of death can impact on the Inheritance Tax due on death.
This won’t apply to your Deed of Variation, but of course you should take advice from your solicitor or tax adviser before embarking on any strategy to dispose of assets.