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Lessons on Will making from a high profile case

The Supreme Court’s recent ruling on an estranged daughter’s challenge to her mother’s Will in favour of charities is highly significant.

Melita Jackson had left her entire £486,000 estate to three animal charities. Her daughter Heather Illott had been rejected by her mother at 17 after she left home to live with her future husband, and when she challenged the Will in 2004 she was a mother of five on benefits with no pension.

In 2007, the county court awarded her £50,000 on grounds that her mother had acted in an “unreasonable, capricious and harsh” way towards her.

In 2011 the Court of Appeal increased it to £163,000, based on a 1975 Act requiring “reasonable financial provision”.

The Supreme Court ruling (which upholds the county court decision) essentially upholds ‘testamentary freedom’ - you can leave your estate as you choose, even if some may see it as unfair. However it also underlines the need to give due consideration to the ‘moral claims’ on your estate.

There is limited potential for a child to claim under the Inheritance (Provision for Families and Dependants) Act 1975. Any claim needs to show the person did not make reasonable financial provision for maintenance of a child, but the court cannot ignore the fact that any provision made would be at the expense of the deceased’s intended beneficiaries.

Adult children, although able to make a claim, have no right to expect anything. Mrs Illott actually was lucky to get anything at all, as she was not dependent on her mother.

But in her judgement Lady Hale observed that the law is unclear on when an adult child deserves reasonable maintenance.

She also made clear that any judgement is not about rewarding or punishing behaviour, and that the nature of the relationship has to be viewed in the round when it comes to deciding what is “reasonable”.

For instance, giving someone a life interest in a house could be sufficient rather than the money to buy it – as proposed in this case by the Court of Appeal. This is a strong endorsement of trusts, separating the right to enjoy the use of an asset and the longer term inheritance of the capital.

If there is anything unusual in your Will, a separate letter of wishes can help avoid a claim against the estate, or defend the Will if it is challenged.

If you are excluding a child or other key potential beneficiary because of estrangement, such as a child “disowning you”, what is the story behind that?

If you are providing for charities or others who might not have expected to benefit, is there a special reason?

If you are leaving more to some children and less to others, the reasons may not be fully appreciated within the family, such as having helped one child with a large lifetime gift, or recognising something major that one child has done.

If you have a concern about the circumstances of one child or beneficiary, you can think about leaving their share in trust rather than outright.

If there is a particular reason for doing this, explaining it in writing Will help the trustees and family understand.

It can also help trustees know better how to use any flexible powers they have under the Will.

Vicky Day, Senior Associate

Published: 3 April 2017

A moment of clarity

April 2017

Key Contact

Vicky Day