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24 January 2020

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How to Exclude a Child in a Will

Posted by: Chris Burrows

Ensuring that your will reflects your wishes before you die is important, as it resolves the ambiguity of how to distribute your estate between your family and friends, as well as any charitable causes you would like to leave a sum to.

If you have a reason for wanting to exclude your child from your will, it is vital that your will is written appropriately so that they won’t inherit. There is no way to guarantee that your wishes will not be challenged by your child after you die, but there are some steps you can take to mitigate this risk.

In this article, we’re going to look at: 

  1. The Reasons for Excluding a Child
  2. Methods of Excluding a Child from Your Will
  3. Reducing the Risk of Your Will Being Challenged

The Reasons for Excluding a Child

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One common reason why you would want to remove your child from your will is having a poor relationship with them. While your motivations will not necessarily impact how you go about excluding them from your will, they could determine whether you exclude them in the first place.

For example, many parents with financially stable adult children choose to leave their estate to their grandchildren instead. Another common reason is that a parent feels their child cannot be trusted with a large amount of money.

Both scenarios could make you feel like your only option is to remove your child, but this is not the case. Instead, you could make use of a trust.

A trust involves placing your assets in the care of trustees, who manage the estate on behalf of the beneficiary.

As such, a trust could allow you to protect assets for future generations, while still allowing your child to enjoy any income generated by the trust. Trusts can also help families to ensure assets are passed on in a tax-efficient way.

However, this option is not always suitable. If you wish to remove your child because your relationship has gone beyond the point of reconciliation, then excluding them may be your preferred option.

As excluding your child is such a drastic step to take, you should carefully consider whether there are any other ways you can achieve your wishes first.

Because your will might be challenged by the removed beneficiary, it is best to find a more amicable resolution first.

Methods of Excluding a Child From Your Will

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The most straightforward way of excluding a child from your will is to not write them into it. Testamentary freedom gives you the right to include or exclude whomever you wish.

However, as your will can be challenged after your death, you have to plan ahead as you won’t be around to defend your decision.

Once you have decided that your child will not be a beneficiary, you need to take precautionary measures to prevent them from making a successful claim, such as:

  1. Use a professional to make a will: More and more people are using DIY kits to write their will, and while this may seem like a smart cost-cutting option, it is best avoided. A challenge to a will leads to it being more scrutinised, giving greater opportunities for errors to be found, or a court to decide it is invalid. DIY kits are generic and can cause problems when writing a will for unique or more complex situations.
  2. Make your reasons clear: Your child will presumably be upset at being left out of your will. If possible, discuss the reasons why you have done so with your child. Alternatively, write a letter explaining why they have been left out. Make sure to send a copy to your solicitor, too, and sign it.
  3. Using a trust in your will: You can create a trust in your will to allow your executors to distribute assets as they see fit. You can leave guidance for them to consider but the decision is up to them. Your executors will be able to consider the state of your relationship with your child, if you had reconciled they might want to give your child a share of the estate, but if you were still estranged your executors would not be obliged to give your child anything. Trusts like this can give families better control over inheritance, letting the executors take any changes of circumstances into consideration.
  4. Lifetime gifts or trusts: You could give assets away or set up trusts during your life. Assets you have given away will not pass under your will. Lifetime gifts might still be challenged but may offer a different route to plan the succession of your assets.

Remember, there is no substitute for seeking professional legal advice specific to your situation.

Reducing the Risk of Your Will Being Challenged

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Your child will have the right to challenge your decision. Therefore, you have to make sure the validity of your will stands up to scrutiny.

If your will is challenged, it is likely to be done so on one of the following legal grounds.

Your Will is Not Valid

To be valid, your will must comply with Section 9 of the Wills Act 1837. The Act states that the testator (the person whom the will applies to) must sign their will in the presence of two witnesses who are present at the same time who must also sign the will. There are other criteria, such as your ability to understand the will, which need to be met that your solicitor can explain.

Ensuring your will is valid is the main reason you should use a solicitor to draft your will. If you do not, the smallest error may be used as a basis to challenge your will.

You Did Not Make Reasonable Financial Provision

If you are excluding a child who is dependant on you financially or for accommodation, or if there are other circumstances where you might be expected to provide for them, your will may be challenged under the Inheritance Act 1975 on the basis that you have not provided reasonable financial provision.

This claim can be successful if the excluded child is underage and unable to financially provide for themselves.

In the case of adult children, challenges can be successful if they depended on their parents for financial provision or accommodation, or if there are other circumstances which would make it appropriate for an adult child to be provided for.

For more information on how a will can be challenged, click here.

Conclusion

Reaching the decision to remove your child from your will is not one that should be taken lightly. Once you have made a decision, though, you want to ensure your wishes are going to be followed.

For that reason, you need to do your best to put together a will that is going to withstand a challenge. That means you need to speak to a solicitor who can advise you on exactly what you need to do.

Speak to the Glaisyers team to find out what your options are and how we can help you put together a valid will that reflects your wishes.

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Chris is head of the firm's Private Client department. He is a qualified Trust and Estate Practitioner who helps clients to face a variety of challenges, including managing their assets and estates.

Chris Burrows - Partner, Head of Private Client

To discuss how Glaisyers can assist you contact Chris Burrows on Chris.Burrows@glaisyers.com or via 0161 832 4666.

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