Stephanie Brobbey, Senior Associate in Goodman Derrick's private client team answers a reader's question in the Financial Times. 

There is a basic principle under English law, known as testamentary freedom, which means individuals are free to leave their estate to whomsoever they wish. In theory, this means it is perfectly legal for you to leave your assets to your children in unequal shares. However, you have every reason to question whether this is a good idea. 

Your immediate concern about making unequal provision for your children may relate to the possibility of your daughter taking legal steps to contest your will after your death. Generally speaking, your daughter would have to establish that you had failed to make reasonable financial provision for her by reference to a need for maintenance on her part; a difficult test to satisfy where the applicant is financially independent. 

Alternatively, she could attempt to challenge the will on the basis that you were coerced into making unequal provision or that you lacked the requisite mental capacity to make a will on those terms. In reality, legal actions of this nature are extremely difficult to pursue and, more often then not, unsuccessful.  

Your most pressing concern ought to be the relationship between your children after your death. Treating your children unequally will almost certainly create discord, even if it does not result in legal proceedings. The psychological impact of being left out of a will or treated differently should not be underestimated. There are also practical issues to consider: your daughter might be well off now, but what if her financial position were to change, for example, because of divorce or bankruptcy? 

An individual who benefits from an estate can choose to vary his or her entitlement in favour of someone else under a document called a “deed of variation”. Provided the deed of variation is signed within two years of the date of death, the variation will be treated as having been made by the deceased under the terms of the will, which is important for tax purposes. Therefore, if you left your estate to your children equally then your daughter could, if she wanted, decide to vary her entitlement to your estate in favour of your son. 

If you still feel strongly about wanting to leave more of your estate to your son then it is essential that you discuss your thoughts with both children and explain your reasons for doing so. After your death you will not be able to assure them of your equal love and affection for them.  

Experience has shown me that unequal treatment is a recipe for discord. Even if a formal dispute does not arise, your actions, compounded by the devastating and unpredictable nature of grief, would be likely to create a gulf of bitterness and resentment between your children.