On Wednesday, 15 March 2017 the highest court in the UK upheld the wishes of a mother who had chosen to exclude her daughter from her Will and leave everything to charity. The judgment confirmed that people should be free to give their money to whoever they want when they die and adult children who object to this should only be able to bring a challenge in limited circumstances. The court also confirmed that charities have as much right as anyone else to receive gifts of money in a Will.
Michael Cavalla, Wills Trust and Probate solicitor at Forrester Sylvester Mackett explains what happened in the case, the importance of preparing a letter of wishes where the terms of your Will may be controversial, and what the judgment means for anyone making a Will or who is thinking about challenging a Will.
Mrs Ilott had been estranged from her mother, Mrs Jackson, since 1978 when she left home at the age of 17 to live with her now husband. During the 26 years that followed, until Mrs Jackson’s death in 2004, there was very little contact between Mrs Ilott and her mother, despite a few failed attempts at reconciliation.
Mrs Jackson was very resentful about what had happened and 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 decided to do this and which instructed those responsible for dealing with her estate after she died to fight any attempt her daughter might make to challenge her decision.
Mrs Ilott and her husband did not have a lot of money. They lived in housing association accommodation and were reliant on state benefits. Four of their five children still lived at home, they had an old car which kept breaking down, they had never been on a family holiday and they could not afford to redecorate or replace old and worn out household goods. On this basis, Mrs Ilott decided to challenge her mother’s decision to leave her out of the Will.
The challenge was brought under the Inheritance (Provision for Family and Dependants) Act 1975, which allows a court, in exceptional circumstances, to interfere with the terms of a Will where it can be shown that reasonable financial provision has not been made for a husband, wife or child, and occasionally some other person, in circumstances where it should have been.
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 argued that she should be entitled to more. The case was referred to the Court of Appeal which agreed with her and increased the amount she should receive 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.
What the court decided
The court examined the law, and the particular circumstances of this case, and decided 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 very limited circumstances. In this case Mrs Jackson’s 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. What counts as maintenance is not fixed and will vary from case to case. It does not mean that the financial provision should only be enough to fund what is needed to keep the child alive, but equally it should not extend to anything or everything it would be desirable for them to have.
- When deciding whether financial provision should be made, 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.
- There is no need for anyone named in the Will to prove that they were entitled to be named as a beneficiary or that they had any expectation that they would be provided for.
- 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.
This case is interesting for a number of reasons, as Michael Cavalla explains:
“This is the first time the Supreme Court has examined the provisions of the Act and the clear message is that, as a general rule, the wishes of a deceased person about who should inherit their estate should be respected – even where that decision is to disinherit family members in favour of charities – and in those limited cases where a claim to vary the terms of a Will is made the financial provision allowed will be restricted to that which is truly reasonable.”
For advice on making a Will and on drafting a letter of wishes to explain why you have decided to benefit some people and not others, or for help in challenging or defending the terms of an existing Will, please contact our Wills Trusts and Probate team.