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A Battle of Wills –Disinheritance and The Law

As or perception of what it is to be a ‘conventional’ family changes and develops, is our sense of what we owe to our children also changing over time? Jeremy Bentham once said that the freedom of individuals to dispose of their property upon death as they see fit existed “for the encouragement of virtue and the repression of vice in the bosom of their families”. That is to say, a parent could write a Will in a way as to provide incentive to, or indeed penalise a child in terms of their behaviour or the relationship between parent and child at any given time.

With the introduction of the Succession (Scotland) Act 1964 and the implementation of legal rights came the assurance that a child could not be disinherited from the estate of a parent upon their death. Many questions are raised when considering the implications of this legal right. For example, if a parent and child have long ago lost contact due to a strained relationship, should that parent be able to omit their child from their Will in favour of another who cared for them in their final years? Looking to the 2015 English case of Ilott v Mitson it would appear not. Further, where a parent fears that their child may squander their inheritance due to alcohol or drug dependency for example, should they be afforded the right to place the inheritance into a Trust in order that they may be essentially ‘drip fed’ the money, and thus protecting their welfare? Currently, a parent is indeed able to place the inheritance due to a child into Trust, however a child equally has the right to challenge this decision and request their right to the estate be paid out in full. If the wishes of a parent in these circumstances are reasoned and clear, why should this wish not be upheld?

Whilst the rights of a dependent child must always be considered and protected from impoverishment where necessary, it has become all too clear that the rights of the child, no matter their age or financial circumstance, outweigh the right of a parent to choose what happens to their estate upon death.
This is not to say however that a person should negate to make a Will with the view that their wishes may not be fully realised. Only by making a Will can a person ensure that their affairs will be dealt with as they wish upon their death and its importance cannot be denied. However, it is essential that those considering disinheriting a child be fully aware that they are unable to do so simply by omitting them from their Will. As the saying goes, “where there’s a will there’s a way”- or not as the case may be.

This blog post was written by Amy-Louise Pollock, LLB (Hons), Dipl LP

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