The Death Of Testamentary Freedom?
You will not always have the final say on who inherits your estate. Certain categories of family members may now be able to successfully challenge your will if you exclude them.
In Ilott v Mitson [2015] EWCA Civ 797, Melita Jackson left her £500,000 estate, subject to one small legacy, to three charities; the Blue Cross, the Royal Society for the Protection of Birds, and the Royal Society for the Prevention of Cruelty to Animals. She did this to the exclusion of her only daughter, Heather Ilott.
Mrs Jackson and Mrs Ilott had been estranged for 26 years following Mrs Jackson's disapproval of her daughter's relationship with her now-husband. When drawing up her will Mrs Jackson expressed that she did not want her daughter to benefit in any way from her estate, requesting that her executors fight any claim that her daughter might make after her death.
Following Mrs Jackson's death, Mrs Ilott made a claim under the Inheritance (Provision for Family and Dependents) Act 1975, for 'reasonable financial provision' from her mother's estate. She was initially awarded £50,000 from the estate but appealed for a greater sum. The Court of Appeal's judgment was handed down on 27 July and allowed the appeal, awarding Mrs Ilott £164,000; around one-third of the estate.
The law of the land
The general position under the law of England and Wales is that individuals domiciled here have freedom of testamentary disposition, which means that they can leave their estate to whomever they choose. This is not always the case in other countries. For example France and Scotland have 'forced heirship' rules which dictate how much of the estate can be left freely, and how much must go to certain family members.
However the 1975 Act undermines the notion of testamentary disposition to some extent, by allowing certain individuals the right to make a claim against a deceased's estate for greater provision. The potential categories of claimant are the deceased's spouse or civil partner, their child, someone treated as a child, someone maintained by the deceased, and their cohabiting partner. So while the starting point is that you can leave your estate to whomever you choose, a claim could be made after your death if you exclude any of these individuals.
A new precedent
Traditionally the courts have discouraged claims by able-bodied adults capable of earning their own living. It is being suggested in the press that the Ilott...
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