A Will is a very important legal document. In order to be considered valid, everyone involved must be confident that the person who made the Will had full mental capacity when they did so.

One of the ways this might be questioned is if the person who has died made what appears to be a strange decision in their Will. This could include leaving out a key family member who would legally be entitled to inherit via intestacy rules.

Are you allowed to disinherit close family members?

Being disinherited often seems to be a big concern for characters in books and films, but in reality the process of disinheriting a close relative is not straight-forward.

The Inheritance Act 1975 determines that anyone you had been financially supporting before you died would be entitled to a ‘reasonable provision’ in your Will. This would mean, for example, that a spouse who had been the breadwinner would be obliged to bequeath a fair portion of their estate to their surviving partner.

Of course, the point of a Will is to make your own decisions about who you would like to benefit from your estate after your death. If you had a genuine reason why you didn’t want your estate to pass to a close family member – and you hadn’t previously been financially supporting them – there’s no reason why you shouldn’t be allowed to do this. However, you would likely need to take some extra steps to make sure the Will would not be vulnerable to challenge or dispute.

Could the disinherited family member dispute the Will?

It’s not unusual for family members to have disagreements after a death, especially if one of more of those family members have been left out of the Will.

If the person who has been left out believes they have the right to have been left an inheritance on the basis of the Inheritance Act 1975, they may well seek to pursue this.

Alternatively, someone who has been left out of your Will could question your mental capacity at the time of writing the Will. They may choose to argue that you had been either:

  1. Not in your right mind when writing the Will, hence why you had made the decision to leave them out. They may argue that the reason they had been left out of the Will was not true or fair, but perhaps a result of beliefs related to poor mental health or losing mental capacity.
  2. Unreasonably influenced by another party in order to leave them out of the Will. The legal name for this is ‘fraudulent calumny’ and this occurs when one party deliberately turns someone who is making a Will against another party in order to benefit financially.
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The case of Clitheroe v Bond, 2020

Earlier this year, a woman named Susan Bond successfully challenged her mother’s Will after she had been disinherited.

Ms Bond’s mother, Jean Clitheroe, died in 2017, leaving an estate worth over £300,000. In her Will (and in a previous Will) Jean left the entire residuary estate to her son, John Clitheroe, who was also the executor. Mrs Clitheroe’s reason for this was set out in an accompanying letter of wishes, which said that she had deliberately not included her daughter Susan because she was a ‘shopaholic’ and a ‘spendthrift’. The letter also included other allegations against Susan.

Susan Bond opposed her brother’s application for probate by arguing that their mother had not had testamentary capacity when the wills were made. Her evidence for this was centred around an affective disorder that Jean Clitheroe had suffered from after the death of Susan and John’s sibling. It was claimed that as a result of this affective disorder, Jean had experienced depression and delusions that centred around Susan and her behaviour.

As part of her legal challenge, Susan also claimed that Jean’s delusions were largely due to John actively seeking to poison Jean’s mind against her.

This meant that there were two parts to Susan’s challenge against the wills.

  1. Grounds of testamentary capacity (arguing that Jean had not had the mental capacity required to make a Will due to suffering from an affective disorder).
  2. Grounds of fraudulent calamity (arguing that John had deliberately sought to turn Jean against Susan in order that she be disinherited).

Susan asked the court to disregard Jean’s two wills and to rule that her estate be distributed via intestacy rules instead.

As there were two elements to this case, there were two issues that had to be proven or disproven. The first was the question of whether Jean’s affective disorder meant she had not had the mental capacity to make the wills. For this, it was John’s responsibility to prove that his mother had had capacity. The court ruled that the medical evidence he provided that she had was not as definitive as the evidence provided by Susan that she had not.

For the fraudulent calumny charge, it was Susan’s responsibility to prove that John had encouraged Jean’s delusions about her. She was not able to provide any direct evidence of this, and so it was determined that this was not a case of fraudulent calumny.

Despite the lack of evidence on the fraudulent calumny charge, the court did rule that it was likely Jean Clitheroe had not had testamentary capacity when she made the wills. They decided that because she had suffered from ‘insane delusional beliefs’ that had affected her decisions, the wills should be considered invalid. They agreed the estate should be distributed along intestacy lines, which meant it would be split equally between Susan and John.

What can you do to protect against something like this?

The best way to ensure the instructions in your Will are carried out exactly as you intend is to get advice from an experienced solicitor. This is especially important if you have decided to disinherit a close family member.

In circumstances like these, your solicitor will talk through the situation with you to make sure they fully understand it. They will then be able to recommend the best way to proceed.

This may include drafting a letter of wishes to include with your Will to clearly set out your reasons for making the decision. If appropriate, your solicitor may also suggest that you include medical evidence with your Will to show that you had full testamentary capacity to make it.

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