I have two daughters, one of whom is very caring and has guaranteed that my wife and I can live with her if we become incapacitated (we are both in our 80s) and the other is an uncaring and ungrateful person, who is unmarried and living with her latest boyfriend.
Over the years I have supported the latter financially at enormous cost. Despite having university degrees she has never had any consistent employment and has had none at all for a few decades.
I pay her a monthly allowance of £1,100 and had set up an investment fund in her name and managed by me to provide for her old age as she has minimal pension provisions.
I plan to disinherit my daughter, and my wife is in full agreement: Lawyer Chris Gilbert of Nalders Solicitors explains how to protect an estate against any future claims
This fund, which exceeds £250,000, has now been removed from my control as I set it up in her name and she has informed the company that I should be denied further access.
She has refused to discuss this with me and she ignores all telephone calls and emails.
Someone who knows her has told me that she has also changed address (unknown) so all communication is stopped.
She is an ungrateful wretch and I consider that she has had more than her fair share of any inheritance money during her lifetime.
I now intend to disinherit her completely. Are there any precautions I should take? My wife is in full agreement.
Tanya Jefferies, of This is Money, replies: I’m sorry to hear about this rift in your family.
We asked a lawyer experienced in overseeing the writing of wills where there is a risk of a claim against an estate to give his views on your situation.
He gives valuable advice on how to ensure any future legal challenge to your and your wife’s wish to disinherit your daughter is unlikely to succeed.
Chris Gilbert, partner for wills and probate at Nalders Solicitors, replies: It is important to remember there is nothing that can be done to prevent a child from seeking to make a claim against your estate.
Their version of the truth is often very different to yours. That being said there are some steps that can be taken to maximise the chances of your wishes being upheld.
There are some common actions that tend to be ‘run’ by disappointed beneficiaries.
From personal experience, a number of these arguments are deployed with the hope that something is uncovered that can be exploited in order to achieve a financial settlement. They are:
Chris Gilbert: Withdrawing your daughter’s allowance would reduce her overall reliance on you and weaken any claim against your estate
– Lack of testamentary capacity;
– Undue influence;
– Proprietary estoppel: This relates to representations, promises and assurances regarding inheritance that may have been made by a testator to a beneficiary, that they have then relied on to their detriment;
– Want of due execution: If a will does not comply with certain formalities, it will not be admitted to probate save for in certain circumstances;
– Want of knowledge and approval: Before a will is admitted to probate the court must be satisfied that the testator knew and approved of its contents at the time that they executed the will;
– A claim under The Inheritance (Provision for Family and Dependants) Act 1975: This allows certain persons to apply for reasonable provision from an estate.
There are a number of other actions but I have cited what I perceive to be the main ones. You may consider taking the following precautions.
1. I note that you have supported your daughter at enormous cost to yourself, crucially paying her a monthly allowance.
You should consider withdrawing this to reduce her overall reliance on you. This would go some way toward weakening any claim she may seek to advance under the Inheritance Act 1975.
Explain to your daughter that you are removing the monthly payments and that you will not be making any further provision for her in your will and the reasons why.
Keep copies of any written communication so that she is unable to allege that you promised her a share of the estate on your death and you have now gone back on this promise.
You should make every effort to convey this information to her even though she is not taking your calls.
2. Given your age there is also a significant risk that if you and your wife make any changes to your wills your testamentary capacity may be called into question.
When seeing a solicitor you should ask them to request a contemporaneous report from a suitably qualified medical professional to lodge with your will confirming your capacity to make these changes.
You can also consider having this person act as one of the attesting witnesses to the new wills.
3. If you do make these changes, ensure no other family members that stand to benefit from your daughter’s omission from the wills either take you to or attend the meeting.
If you need someone to take you to an appointment, request that they stay in the car. This should stifle any argument that you have been unduly influenced.
4. Ensure you see a suitably qualified solicitor to make these changes. This will assist with all of the above and any argument regarding due execution of the will/lack of knowledge or approval.
5. Finally, you should write handwritten letters to place with your wills confirming why you have made these changes.
This will serve as useful contemporaneous evidence and also assist with any argument regarding your purported lack of capacity.
Lodging a copy of this question and my answer with your will would also be useful evidence in its own right.
