Has the law about wills changed?
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Tax, Trusts, Wills & Probate
Will Probate and Trust Disputes
In July, Heather Ilott was awarded £164,000 by the Court of Appeal after she was excluded from her late mother’s will. The news headlines which this decision generated suggested that it may have removed testamentary freedom, changed the law surrounding will making and opened the floodgates for claims by adult children against their parents’ estates.
What the the headlines failed to mention was that Mrs Ilott’s claim was made under existing legislation, which has been around for 40 years, and the case was decided on its’ specific circumstances.
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Mrs Ilott, aged 54, fell out with her mother, Melita Jackson, when she was just 17 years old. Mrs Jackson disapproved of Mrs Ilott’s then boyfriend, Nicholas Ilott, and she and her daughter were estranged for over 20 years.
All attempts at reconciliation by Mrs Ilott failed and Mrs Jackson’s will left her £486,000 estate to a number of charities, with whom she appeared to have no previous connection.
Mrs Ilott received nothing and she issued a claim against the estate which has so far taken around 8 years to resolve. In 2007, she was initially awarded £50,000 by the court but in 2009, both Mrs Ilott and the charitable beneficiaries brought cross-appeals against this decision. The charities’ appeal that Mrs Ilott’s claim should have failed was upheld. As a result, Mrs Ilott’s appeal to increase her £50,000 award was not heard, leaving her with nothing.
However in 2011, Mrs Ilott brought a further appeal and the £50,000 award was reinstated. Her appeal to increase this sum has now also now been heard, resulting in the court granting her £164,000, which should allow her to purchase her Housing Association home and also receive around £20,000 in cash.
So what does the Ilott decision mean for anyone considering making a will?
The position remains that in England & Wales an adult can still leave their estate to whomever they like. However, any person making a will should also be aware that the Inheritance (Provision for Family & Dependants) Act 1975 allows certain family members or financial dependants to ask the court to either give them a legacy (if they have been omitted from a will) or to increase the amount which they are due to receive.
What amount is awarded (if any) depends upon a number of factors which the court will take into account. For example, the claimant’s financial position, the value of the estate and also the financial positions of the other beneficiaries who are named in the will.
In Mrs Ilott’s case, the court took into account her financial circumstances, the fact that she had tried to reconcile with her mother and also the lack of any previous connection between her mother and the charities who benefitted under her will.
Illot did not change the law as these type of claims have been brought against estates since 1975. However, previously, a lengthy period of estrangement might have been considered sufficient reason to exclude a child from a will. Had Mrs Ilott caused the estrangement or her mother had a long term connection with the charities who benefitted under her will, the outcome of the case may have been different.
It will be interesting to see how future claims involving adult children will be dealt with by the court. Whilst Illot might encourage claims from some adult children, we think it is it is likely that the greater proportion will not be pursued, or will not succeed, in that the facts will not be on a par with those in Illot.
In the meantime, when making a will it is vital to highlight any family disputes or estrangements to the solicitor drafting your will.
Our Disputed, Wills, Probate & Trusts Team can provide you with advice about dealing with 1975 Act claims and also taking steps to reduce the risk of a claim later occurring.
20th October 2015
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