Do we still have testamentary freedom in England & Wales?
As you may have heard or read in the media there has recently been a case where the estranged daughter of the late Mrs Jackson contested her Will – and succeeded.
Mrs Jackson and her daughter, Mrs Ilott, had not had contact for 30 years. Mrs Jackson made her Will and left everything between several charities, completely excluding her daughter.
For years it has been possible, under the Inheritance (Provision for Family & Dependents) Act 1975, to claim against a deceased’s estate if you are a member of a listed class (such as spouse, child, dependent, cohabitee) for reasonable financial provision. Mrs Ilott made such a claim and, when the case was appealed to the Court of Appeal (for the second time), the judge decided that Mrs Ilott should receive £164,000 which was calculated to allow her to purchase her home and have left a small lump sum which enables her to continue receiving benefits. The judge at the Court of Appeal decided that if Mrs Ilott received a larger lump sum meaning her State benefits were stopped, she would have effectively not have received financial maintenance.
Up until recently it had appeared that adult children were usually only successful claiming against a parent’s estate when they were receiving State benefits and it had been thought that the reason a judge would decide in favour of that adult child was to relieve the burden on the State of providing for that person. The decision in Ilott v Mitson has changed this viewpoint completely.
Decisions in the Courts will always depend on their own facts so there is no guarantee of what may or may not happen.
If a person now wishes to make a Will and exclude an adult child they should bear in mind that their Will may be overruled after their death by a judge and should seek legal advice on the issue.
For more information or advice on Wills please contact a member of our Private Client team on 01323 727321.