Can you disinherit someone in your will?

Kelly Carr, Senior Associate Solicitor at Rothley Law, explains the legal concept of testamentary freedom, how you can make a will that is difficult to contest, and what the risks are of excluding someone from a will.

Can you disinherit a child in your will in England and Wales?

In England and Wales, we have testamentary freedom. This legal concept means that we have the right to decide how our estates are distributed after death as per the terms of our will. It is our choice as to whether we leave our hard earnt estates to the cats’ home, a dear friend or our doting families.

It is also our right to exclude anybody that we wish, including a child. Providing the formalities of a will are in met (section 9 of the Wills Act 1837 confirms the requirement), we have freedom to leave our monies to whoever we wish.

Unlike in some other jurisdictions, such as Scotland, we have no forced heirship rights, and we do not have to leave our estate to families or children. So, in short, you can disinherit someone in your will.

How can you make a will that cannot be contested?

Whilst a testator (the person making the will) has testamentary freedom, that does not mean that we can guarantee that an excluded beneficiary does not receive monies from an estate.

Here are some good practices as to how to make a will is the most robust it can be:

Use an experienced solicitor

Use an experienced and independent solicitor who should prepare a detailed and accurate file of papers containing important information, such as the reasoning behind the decisions to disinherit a beneficiary. The will file will be crucial if the will’s validity is challenged.

In the case of Hawes v Burgess [2013] EWCA Civ 94 at Paragraph 57 it explains that: “[…] it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read it through and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.”

A face-to-face meeting with a solicitor is best rather than a virtual meeting or liaising with the testator over the telephone or e-mail, and you should also ensure that the solicitor has some time in a meeting or a whole meeting with just the testator alone to confirm that the testator is not being influenced into making the will. The solicitor should document this.

Ensure testamentary capacity

A solicitor should follow and document the test for testamentary capacity that was established in the landmark legal case of Banks v Goodfellow (1870) LR 5 QB 549. Under the Banks v Goodfellow test the testator must:

Understand the nature and effect of making a will. They must understand that they are making a will which is a legal document.
Understand the extent of the property being disposed of. They must broadly understand what they have in their estate.
Comprehend and appreciate the claims to which they ought to give effect. They must understand who might morally expect to receive inheritance from them.
Be free from insane delusions or disorders of the mind.

A solicitor should read the will to the testator line by line and answer any questions to ensure that the testator understands the whole will and its implications. If the solicitor has any concerns about the testator’s testamentary capacity or if the estate is highly contentious, they should follow the Golden Rule which states that a medical practitioner should assess the testator’s testamentary capacity, and they could witness the will.

Prepare a letter of wishes

Preparing a letter of wishes, to be kept with your will, can explain the reasoning behind the decisions in your will. Unlike a will, it is not legally binding, but it provides guidance for the people dealing with your estate and explanations about why you have excluded someone from the will.

Consider gifts

Consider giving a notional gift and/or including a ‘no contest’ clause in your will which may deter a disappointed beneficiary from making a claim. A ‘no contest’ clause is a provision that states a beneficiary will forfeit their inheritance if they challenge the will’s validity or attempt to bring a claim against the estate.

Use a translator (if necessary)

If English is not the testator’s first language, ensure that a translator is present at any solicitor meetings or that an independent individual can communicate with the testator in their preferred language.

What are the risks of disinheriting someone from your will?

Even if a testator has followed all the good practices, the risk of disinheriting someone from your will is that there are certain legal claims that can be pursued by somebody that has been disinherited. The two most well-known claims are:

challenging the validity of the will
a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”)

Validity claim

A will can be challenged on the following grounds:

lack of testamentary capacity
lack of knowledge of the terms of the will and approval of its contents
undue influence
fraud or forgery
lack of formalities

A claim challenging the validity of the will is reliant on strong contemporaneous evidence. A validity claim cannot be based on inequality or perceived unfairness because the testator has testamentary freedom.

Inheritance (Provision for Family and Dependants) Act 1975

A separate type of claim is a claim for reasonable financial provision under the Inheritance Act. This claim acknowledges that the will is valid but claims that the disappointed beneficiary is in financial need and requires provision from the estate.

There are certain categories of claimants under the Inheritance Act who are eligible to make a claim. These are:

a spouse or civil partner or formal spouse or civil partner of the deceased
a child of the deceased, whether minor or adult
a person who was treated as a child of the deceased’s
a cohabitee of the deceased providing that they were in a relationship akin to that of spouse or civil partner for a period of at least 2 years prior to the deceased’s death
a person being wholly or partially maintained by the deceased immediately before their death

Section 3 of the Inheritance Act outlines several factors the court must consider when deciding whether reasonable financial provision has been made in the will and if not, what reasonable financial provision is for the applicant. Each case turns on its own facts as everyone’s financial and medical circumstances are unique. The factors include:

the financial needs and resources of the applicant and other beneficiaries now and in the future
the obligations and responsibilities of the deceased
the size and nature of the deceased's estate
any physical or mental disabilities of the applicant or beneficiaries
the court also considers any other relevant matters, such as the conduct of the parties

A claim under the Inheritance Act should be brought within 6 months from the date of the grant of probate. Once the court has considered all the relevant factors, it decides whether to give financial provision and what is reasonable in the circumstances. The court has a wide range of discretion when deciding these cases.

About the author

Kelly Carr is a Senior Associate Solicitor at Rothley Law and acts for claimants, defendants, and executors in a wide range of disputes including challenges to the validity of a will; claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975; professional negligence arising out of negligent will drafting or Estate administration; removal of executors; and proprietary estoppel claims.

Find out more

Wills Act 1837 (Legislation)

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

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Publication date

2 October 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.