A recent decision that saw the Court of Appeal award a disinherited daughter £163,000, has caused many clients concern over their own wills, in particular, their decisions to favour certain relatives or to exclude others entirely. Keystone’s Wills and Probate specialist Rose Phelps shares her thoughts on the future of wills after Ilott v Mitson.
Generally, it is assumed that English law provides everyone with the choice over who should benefit in their will. In England and Wales we do not have a system of “forced heirship”, giving certain relatives an entitlement to a defined share of an estate. On the other hand, since the 1930s we have had a body of statute and case law giving some individuals the right to claim “reasonable financial provision” from the estate. The main statute is still the Inheritance (Provision for Family and Dependants) Act 1975, with several subsequent amendments. It is worth repeating that individuals only have the right to make a claim and the legislation does not simply give them a share of the estate. Claims that are made are not necessarily successful, but they are time consuming and expensive to deal with, even if ill-founded or malicious. This is often what someone means when they say they want to “contest” a will – they feel that the will is unfair to them and they want to make a claim.
The facts of the Ilott –v- Mitson case ( EWCA Civ 797) are these. Mrs Jackson died in 2004 having been estranged for 26 years from her only child, a daughter who had left home to marry Mr Ilott. They went on to have 5 children and lived in very reduced circumstances. The will, made in 2002, left a small legacy to one charity and divided the residue of the estate between two more charities with no provision at all for her estranged daughter or grandchildren. The charities were all well–known national animal charities.
The Court of Appeal awarded a sum for the daughter to buy her own home and up to £20000 for immediate needs (total award £163,000 out of a net estate of £486,000). The Court’s power is actually to make a “maintenance” award but their argument was that by giving her capital to buy a house the daughter was relieved of a need to find rent which was a “maintenance” outgoing. The judge at first instance had decided that in view of the daughter’s “obviously straitened and needy financial circumstances” the will did not make reasonable financial provision for her. There were also comments about the charities getting a “windfall” so that their financial position did not have to be balanced against that of the daughter. The Court of Appeal examined other factors as well, such as the lack of obvious lifetime connection with the charity beneficiaries in the will, and Mrs Jackson’s wishes. The Court of Appeal took the opportunity to review how such claims should be considered by the courts.
Some successful claimants in the recent past have had some continuing physical or mental health issues to contend with, or some other factor that made their exclusion from the will hard for the Court to countenance, but what are solicitors to tell clients now? Should every parent provide equally for each child to avoid the risk of litigation? Should an only child always get all or most of the estate? Will widespread newspaper coverage mean more disaffected relatives threaten a claim, in the belief they are entitled to something come what may? Would the Court’s decision in Ilott have been different if the will had benefitted other close relatives or friends rather than charities, and animal charities at that? How can we advise clients making a will in order to deter potential claimants? The facts of Ilott –v- Mitson and the reasons the judges gave for their decision may help us see some way forward.
How to ensure your wishes are respected
The advice to anyone making a will which treats a relative less generously than usual (whatever “usual” means) might now be as follows:-
Cases such as Ilott –v- Mitson are making new law and reminding us of the old law, so reviewing wills regularly (with advice) becomes ever more important, particularly where family relationships are strained.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.