Contesting a Will

Posted 13/10/2015

In England and Wales we have testamentary freedom, which allows us to leave money to whoever we want in our Will, without being bound by law to leave a portion to certain family members.

The Inheritance (Provision for Family and Dependants) Act 1975 was brought in to offer a degree of protection for people who have been left out of a person’s Will, where they were a close relation or relied on them for monetary support.

If the Will or rules of intestacy do not provide reasonable provision they can make a claim against the estate under this act. This does not necessarily mean that this claim is going to be successful.

Historically claims made by surviving spouses, civil partners and children under the age of 18 are stronger and more likely to succeed than those made by adult able-bodied children.

This precedent has now been called into question by the recent Court of Appeal ruling in Ilott V Mitson (2015).

Heather Ilott was disinherited by her mother, Melita Jackson, after they had been estranged for many years. Melita Jackson left her estate to three charities and as such made no provision for her daughter under her Will.

The daughter made a claim, under the Inheritance (Provision for Family and Dependants) Act stating no reasonable provision had been made for her under the Will. For her claim to be successful the court had to be satisfied that it was appropriate for an order to be made at that time.

The daughter’s claim was successful and she was awarded £50,000 of her mother’s estate in 2007. However she was not satisfied with the ruling and appealed.

After several appeals the Court of Appeal recently awarded the daughter £164,000, which is more than triple the first award made back in 2007.

This seems to open the door to successful claims by adult children but there are particular circumstances in this case, which may account for the decision, such as the daughter being dependant on benefits and the mother having had no close links with the three charities during her lifetime.

It also has to be remembered that after several appeals the Courts only decided to award a third of the estate to the daughter. This shows that the Courts are reluctant to award entire estates to adult children making claims.

It must be noted that claims being made against estates certainly is not a new thing and claims have been successful before. It is too early to tell whether this recent case sets a precedent that future cases will follow more generally.

Your Will may be the most important document you will ever sign and if it is challenged you will not be around to defend and explain your reasons behind it. This is why it is important to have a professionally drafted Will to minimise the risk of a claim being made against your estate.

For individual advice, please contact our Lifetime Planning team

Author: Jordan Hall (pictured)