In England and Wales we have what is known as testamentary freedom. This is the ability to make a will on the terms of your choosing, including or excluding whoever you like; but is it really that simple?
The recent Court of Appeal judgement in the case of Heather Ilott demonstrates that it is not always that straightforward and that careful consideration must be given when making a will.
In the case of Ilott, Mrs Jackson had made a will leaving her estate, valued at around £500,000, to three animal charities. She had not made any provision for her daughter, Heather Ilott in the will, and had made it clear that she did not want her to inherit anything from her. She even instructed her executors to defend any claim made by Mrs Ilott against the estate after she had died.
Heather Ilott brought a claim under the Inheritance (Provision for Family and Dependants) Act 1974 for reasonable financial provision. This Act is designed to ensure that certain categories of people have the right to have their claim heard if they have not been provided for in a will. As you would expect, the categories of people who can bring a claim includes spouses, co-habitees, children and other people who were being maintained financially by the deceased at the date of death. Anybody who makes a claim, other than a spouse, is supposed to show that they were being maintained financially by the deceased at the date of death to be able to bring a claim. The Court would then consider whether they have received reasonable financial provision from the estate.
In recent years we have seen the Courts stretch the meaning of being ‘maintained financially’, which can lead to claims being brought by adult children who are in the normal sense of the word financially independent of their parents. This could be said of Mrs Ilott, who had lived independently from her mother for many years. However, the Court was willing to hear her claim, and, after a number of appeals, she has been awarded £164,000 from her mother’s estate.
In the case of Ilott, the Court attached significance to Mrs Ilott’s circumstances; she had 5 children, was in receipt of state benefits, lived in a housing association house and had no pension. The Court commented that Mrs Ilott’s resources ‘are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who had been living independently for so many years’. It was also considered relevant that her mother had ‘no connection’ to the animal charities that she had left her estate to and they were not able to establish ‘need or expectation’.
It is possible that this is a very fact specific case and would not necessarily apply in other circumstances. We do still have testamentary freedom but it is fair to say that this case may lead to an increased number of claims, some of which may be successful. The risks of a will being successfully challenged may be greater if the will appears spiteful or unusual in excluding persons who might expect to inherit. The Court will consider the needs and resources of the excluded beneficiaries, which may not be as great as somebody such as Mrs Ilott.
In light of this case it will be ever more important to leave clear and specific reasons why a will is made on the terms that it is, accounting not only for any exclusion, but also for the chosen beneficiaries. Where a will does exclude people who might expect to inherit, careful consideration of cases like Ilott will be essential to try and reduce the risk of any possible challenge to the will.
We would always recommend taking specialist legal advice when making your will and particularly where there is the possibility of a claim being made against the estate.
This article should not be relied upon as legal advice. Each client’s situation differs and special circumstances apply in every case. If you want further advice on the comments made in the article or the issues raised then you should seek specific tailored advice to suit your personal needs. No responsibility is accepted for action which may be taken in the absence of such specific advice.
For further information regarding wills and probate contact Laura Clark on 0115 9471 533 or email email@example.com