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Can your Will be challenged after you’ve gone?

PUBLISHED: 12:47 12 April 2017 | UPDATED: 12:47 12 April 2017

Archant

Recently the Supreme Court upheld the wishes of a mother who had chosen to exclude her daughter from her will and leave everything to charity. Lucy Fisher, Wills, Trusts and Probate lawyer at B P Collins explains the repercussions of this ruling.

Mrs Ilott had been estranged from her mother, Mrs Jackson, when she left home at the age of 17 to live with her now husband. Mrs Jackson decided to make a will disinheriting her daughter and leaving her money to three charities instead. The will was accompanied by a letter of wishes, which explained why she had made this decision.

Mrs Ilott decided to challenge her mother’s will, under the Inheritance (Provision for Family and Dependants) Act 1975, which allows a court, to interfere with the terms of a will where it can be shown that reasonable financial provision has not been made for a spouse or child, and occasionally some other person.

When the matter first came before the court, it was recognised that some provision for Mrs Ilott was appropriate and so she was awarded £50,000. However, Mrs Ilott was not happy with this and case was referred to the Court of Appeal where the amount she should receive increased to £163,000. The charities objected to this, arguing that it went against Mrs Jackson’s wishes and risked encouraging other people to challenge the terms of their relatives’ wills, potentially depriving charities of valuable legacies. The Supreme Court upheld the charities’ objections and the mother’s wishes. However, despite this ruling, we cannot draw final conclusions for those who are thinking about making or challenging a will. What we can say is that:

• English law recognises the freedom of people to dispose of their assets through their will to whoever they wish and the courts should be slow in interfering with this right, except in exceptional circumstances. In this case Mrs Jackson wishes were very clear, having been set out in her will and explained in an accompanying letter of wishes.

• An adult child making a claim under the Inheritance Act is only entitled to ask the court to make reasonable financial provision for their maintenance.

• This case does highlight the lack of clarity in the law on what might constitute reasonable financial provision for an adult child, however, the court needs to consider a range of factors, including the value of the deceased person’s estate and the financial resources and needs of those named in the will and those applying to vary it. They should also consider how any mental or physical disability anyone named in the will or seeking to challenge it suffers from, together with other relevant matters, such as the reasonableness of the decision to disinherit and the conduct of everybody involved.

• Maintenance will usually be paid as income but, if the facts of the case justify it, it can be paid as a lump sum. Where it is desirable for a child to be provided with secure housing, this should normally be achieved by giving them a right to occupy a property for life rather than giving or buying them a property outright. This is so the value of the property remains an asset of the deceased person’s estate and can therefore ultimately be passed on to the persons or organisations named in the will.

Overall, whilst some may see this as a rebalancing of the law in favour of testamentary freedom, the requirements under the Inheritance Act 1975 remain the same and an adult child can still make a successful claim against an estate if reasonable financial provision is not made for them.

For advice on making a will, guidance on probate or creating a trust, come along to our Dying Matters event on 13 May 2017. 


privateclient@bpcollins.co.uk | 01753 889995 | Facebook | Twitter: @bpcollinslaw

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