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An End to Disinheritance?
21
August

An End to Disinheritance?

By: D.Collins

Tags: Wills, Private Client, Wills And Probate

Many of you will have seen the news headlines about the will of Mrs Melita Jackson, which was successfully challenged by her daughter, Mrs Ilott, recently.
 
Mrs Jackson was a widow, her husband having died in an industrial accident before their only child was born. She fell out with her daughter over her daughter’s relationship with, and subsequent elopement and marriage to, a Mr Ilott. Sadly, despite the passage of several decades, and the birth of 5 grandchildren, the two never reconciled.  Mrs Jackson left her daughter nothing when she died, choosing instead to leave her whole estate to be shared between a number of animal and wildlife charities.
 
Darrell Collins, Head of FDC Law’s our Private Client Department, explains “The general rule under English Law is that people have Testamentary Freedom; that is, that you can leave your money and property to whomever you wish. There are, however, some exceptions to this, in particular, there are some groups of people who may be able to ask a court to, in effect, amend a will to make reasonable provision for them.”
 
She goes on “Not everyone can make this kind of claim – you have to be one of the types of person set out in the Inheritance Act”
The types of person she is referring to are: (a) a spouse or (unmarried) former spouse of the deceased (b) a child of the deceased (c) someone who was treated as a child of the family by the deceased (this might include step-children, for instance) (d) An unmarried partner who was living with the deceased for the two years immediately before their death (e) someone who was being wholly or partly maintained by the deceased immediately before their death.
 
Mrs Ilott was therefore able to challenge the will, as she was Mrs Jackson’s daughter, and did so, on the basis that, she argued, her mother had failed to make reasonable provision for her, in the will.
The court ultimately agreed that Mrs Jackson had not made reasonable provision, taking into account her daughter’s financial needs and the fact the Mrs Ilott was her daughter.
 
One of the Judges, Lady Justice Arden, stated, “she was deprived of any expectation primarily because Mrs Jackson had acted in an  unreasonable, capricious and harsh way towards her only child.” 
 
What does this mean for someone who wants to disinherit a child or other close family member?
 
It does not mean that their wishes will be ignored. The starting point is still that we are free to leave our estates to whomever we want. However, if you are considering making a will which does not include your children, or other close family members,  it is sensible to consider whether there are any people who might challenge your choices, and to take steps to avoid or limit any claims they might make.
 
In the Ilott case, the Court noted that there is no automatic responsibility of a parent towards an adult, independent child. However, in this case, Mrs Ilott was dependent on benefits, had limited earning capacity and no capital assets. For that reason, she was considered to have reasonable needs for her maintenance. The court also took into account that the beneficiaries of Mrs Jackson’s will were charities which she had had no connection with during her lifetime. This was relevant as some of the factors which a court has to consider in this kind of application are the needs and financial resources of any beneficiaries of the will, and any obligations which the deceased had towards them  - it is possible that if Mrs Jackson had left her money to a person or organisation which she had had close ties to during her lifetime, the court might have felt that she had obligations towards that person or organisation, or that they had reasonable expectations from her.
 
It’s likely also that Mrs Ilott’s application would have had a different outcome if she had been financially more secure, as a key issue was her financial need.
 
What the case does show is the importance of considering this type of issue when making a will, so that steps can be taken to minimise the risk of a claim being made, and to reduce the likely impact if one is made. 
 
If you need advice about making a will, or about challenging a will, contact our Private Client Department. 
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