A common misunderstanding that we regularly encounter is that parents are required to treat their children equally in a Will. This is wrong.
There is no legal obligation for a parent to treat their children equally in a Will, or even to leave inheritance to their children at all. The starting point in all cases involving a claim against a deceased person’s estate is that the deceased has testamentary freedom. Testamentary freedom is a person’s ability to choose whoever they wish to inherit their estate.
We regularly receive enquiries from adult children complaining that a sibling has received more than they have under the terms of a Will or that a sibling has received more from a parent during the course of their lifetime. Does this pave the way for any claim?
In some cases, a Will may contain a ’hotchpot’ clause. A hotchpot clause is a provision made in a Will that sets out that lifetime gifts made by the deceased to the children need to be taken into consideration by the executors in considering what distributions to make. If there is no hotchpot clause, the executors can (for the purpose of considering the division of assets) disregard lifetime gifts.
However, regard must be had to the rule against ‘double portions’. Essentially, this rule says that it is unfair for a child to receive the same inheritance twice.
Where a parent leaves money to a child in their Will but then, after making their Will, gifts money to that child, then the money should be treated as an advance on the child’s inheritance. It should therefore be deducted from what they are to receive after the parent dies. However, certain conditions must be met for this principle to apply and it will depend upon the specific facts of every case.
When making a lifetime gift or a Will, it is advisable to record the nature of any gifts made as well as whether it is intended that the gift to be instead of or in addition to a share of inheritance under a Will.
If you are concerned about the division of an estate, get in touch with our contentious probate team for expert help.