Disinheritance (Children) Flashcards
Argo for and against retaining current law
Public opinion advocates some claim for children
Avoids cost and hassle of reform
People don’t really distinguish between adult and grown up kids. Part of being a parent is passing something on to the next generation
Children look after parents in old age
Need always irrelevant
But
Rarely claimed
Middle aged children don’t really need share
Only on moveable, bit crap if estate is all heritable
Goes against testator’s intentions
Parents wealth should not belong to whole family
Children have more opps to create wealth
Args for and against fixed share
Public opinion advocates some certain share
Fairer to spouse, children get something but not huge amount
Want to award something to children who might have looked after them in their old age
But
Parents obligation to support ends at 21, why should they still receive on death after this age
You can’t disown your children, no choice
Not child’s duty to look after parent. State does this anyway
Args for and against discretionary system
Allows testator’s wishes to be respected
Doesn’t disadvantage spouse
Needs based
But involves distasteful and distressing args about past.
V uncertain, Reid criticises SLC advocating such a model for children but condemning for spouses
Shouldn’t be based on need, automatic, while point…
What principles govern disinheritance?
A man who does not provide for his children is worse than an infidel
V
Freedom of testation
Why is it important to give inheritance rights to children?
Dot Reid - important that children are entitled to something - “Identity creating role”
Family provision
English position
Discretionary system see Inheritance (Financial Prov) Act 1975
Based on variety of factors
French position
Part of estate reserved for children and size of part depends on number of kids and varies from 1/2 to 3/4
Germany
1/2 of what you would have got on intestacy
New Zealand
Discretionary system
1900 act
