Questions on Disinheriting Someone

Q I have a question about disinheriting someone.
My daughter is a faithful viewer of the TV show: Love Island.
One of the contestants, Ollie Williams, was told by his father that if he had sex on the show, he would lose his inheritance.

I’m not planning to disinherit my daughter or disinheriting someone else, but is Ollie’s father carrying out his threat to cut off his son legal?
If the boy was cut out of his dad’s will, could Ollie contest the will?

AIt has been put about that this Ollie is in line to inherit fifteen millions of pounds. But I have conflicting intelligence that his inheritance is currently nowhere as high, because the stately home in which he lives is actually the property of the National Trust. But let us kick the ball of the size of his inheritance into the long grass.

We instead should focus on the fact, real or rumoured, of him being disinherited. Particularly, let’s take a hand lens to the principle of disinheriting someone who may otherwise have been a beneficiary in your will.

I might have told you of my mate Marta. Born in Mexico, she alighted on these shores on VJ day, her first birthday still in the future. Marta is a fount of proverbs from around the world. One of her favourites translates to English as: ‘The ungrateful child is a wart on its parent’s face: to leave it on is a blemish, to cut it off is a pain.’

My zeroth concern: why would anyone want to have sex on television? More to the point, why would anyone want to appear on television? But we digress.

Disinheriting Someone: Cutting Someone Out

On the matter of disinheritance. In the first, by the principle of testamentary freedom, there’s no obligation to leave your estate to anyone in particular. France, for example, as in several other jurisdictions, there is the principle of ‘protected heirs’ – those who cannot be disinherited. In such places, children get a set proportion of the estate. What they get depends on the number of children and the existence of a surviving spouse.

So, yes, Ollie’s father can cut out his son or anyone else he wishes from his estate; and yes, the disappointed expectant beneficiary can bring a case in the courts. In England and Wales, you are free to leave your estate to whomever you wish in whatever proportions. It’s your right. This is the manifestation of the doctrine of testamentary freedom. You must though, make reasonable provision for those who could ordinarily have expected to have benefited from your will.

Thither and hither, in that jurisdiction and in this, in courts, tribunals and arbitration forums everywhere, one word, a single concept, a solitary notion generates boundless thermal energy alas scant illumination, much to the lucrative delight of litigators and those who build careers around them. That word is ‘reasonable’.

So, while you’re free to leave your estate to whomever you please (and in whatever proportions you desire), you shouldn’t wilfully leave out of your will anyone who could reasonably have a claim on your estate. Testamentary freedom is all very well, but there’s miniscule merit in abusing it. Therefore, disinheriting someone from your will is a tricky business.

Disinheriting Someone: Conditions in a Will

Conditions such as ‘… if you have sex’, are such laughably flimsy legs on which to perch the weight of an inheritance that they would not survive the merest hint of the most cursory scrutiny. I have in all my years in this profession, seen no point in attaching conditions to a will with the purpose of disinheriting someone

I’m yet to encounter a scholar, a practitioner, or even a lay observer who fails to hold that such conditions are an exercise in foolishness. You might have heard of the ad terrorem clause, an eponymous clause is written so as to strike fear in the breast of anyone who attempts to contest the provisions of the will. It goes something like ‘anyone who contests any part of this will would forfeit any gift he or she would otherwise have got from this estate.’ At best it terrorizes the would-be contestant to see half a loaf as being better than a whole basket of bread.

Given the circumstances, it would be a question of, as in all court cases: what’s the law, what are the facts and – whisper it gently –does the court view you with sympathy?

Disinheriting Someone: The Right Way

Many might take my words thus far as discouraging testators from cutting people who’ve fallen out of favour from their wills. Not quite. I merely seek to prevent the court cases and further bouts of nastiness that might arise if you disinherit someone in the wrong way. Like everything, there’s the right way to go about it, just ask me.

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