Disinheriting Your Child: US versus UK

Your will determines what your loved ones will inherit or what your unloved ones will not inherit, right?  

Well – not always.  

The nine community property states in the West and Southwest can somewhat protect a spouse’s interests and the remaining states (including Oregon) have some version of a statutory “elective share” or “election against the will” provision.  Those laws may provide some protection to the spouse, regardless of the will. 

But the children you leave behind don’t have such statutory protection in the U.S.  Absent findings of undue influence, mistake, or legal obligations (such as in the case of child support), a court will generally uphold a will that expressly disinherits the testator’s child. (Note that Louisiana’s civil law system is the exception here and some states’ homestead laws do protect children under age 18 from the loss of a family residence.)

But let’s look at England – where it’s more of a challenge to disinherit your children.  Based on the Inheritance (Provision for Family and Dependents) Act of 1975, English law identifies a class of people who can challenge an estate’s disposition of property by claiming they did not receive a “reasonable financial provision.” The class of potential challengers includes current and former (non-remarried) spouses, certain cohabiters, children (adult or minor, natural or stepchildren), and certain other persons who were “being maintained, either wholly or partly” by the deceased. “

 A recent case from the England and Wales Court of Appeal, Ilott v. Mitson, [2011] EWCA Civ 346, drew attention for its facts as well as the court’s discussion of what “reasonable provision” means.

Melita Jackson died in 2004 at age 70, leaving a residual estate of about £486,000 to three animal and wild bird protective charities.  In both her will and an accompanying letter, Melita expressly disinherited her only child, then 47 year-old Heather. Melita and Heather had been estranged since Heather left home some thirty years prior. In the interim, Melita had not provided any financial support and disapproved of Heather’s subsequent marriage and decision to have five children.

Heather challenged her mother’s will under the Inheritance Act, and a district judge awarded her £50,000 as a “reasonable provision.” When Heather asked for a larger amount, the three charities cross-appealed, and the reviewing judge knocked Heather’s share down to £0.  The Court of Appeal found the total disinheritance to be "unreasonable" and reversed the decision, remanding the case back to (a new) judge for determination whether the £50,000 should be increased. 

I’m sure the charities thought that ruling was for the birds.