Disinheritance is a term used to describe a situation where someone is deliberately prevented from inheriting someone else’s property in circumstances where they would normally be entitled to. The classic example is a parent giving their entire inheritance under their will to their favoured child and cutting the other child completely out of the will.
In these types of circumstances, the disinherited person may have a legal claim to be entitled to a share of the estate.
In the case of a will that doesn’t make adequate provision for the will maker’s spouse or children, the disinherited person can make what is called a “Wills Variation Claim” to ask the court to rewrite the will and reapportion the will maker’s property on a fairer basis.
Unfortunately, in many cases a deceased’s property does not pass through their estate and instead is put into joint ownership with another person or is gifted to another person during the deceased’s lifetime, and a Wills Variation Claim is not possible. However, if there were circumstances that were suspicious, such as one adult child having an elderly parent with dementia transfer all the parent’s property to the one adult child, then that child’s siblings may have a claim to challenge the transaction on the basis of it being done with “Undue Influence” and it being an “Unconscionable” transaction. The law also presumes that if a parent puts property into joint ownership with an adult child that the transaction was not a gift, unless there is clear evidence it was, such as an agreement in writing.
If you think you have been disinherited, it is important to seek the advice of a lawyer to determine your legal rights. Also, if you are making a will or doing estate planning, it is important to seek the advice a lawyer so you don’t unintentionally create a legal headache for your loved ones when you pass.