Last word?

  • Author : Tracy Harris
  • Date : December 2011
ABOUT THE AUTHOR: Tracy Harris is a Litigation Lawyer at Taylor Walton LLP in Luton

It is often assumed that a will is the final say on who will benefit from a deceased person’s assets. But a case has brought into focus the possibility of bringing a successful claim to receive part of the estate of someone who has died, even when the claimant has been left nothing in the will, and how the risk of such a claim can be reduced.

Certain categories of applicant – including adult children and cohabitants – are entitled to make a claim to receive part (or a greater share) of an estate under the Inheritance (Provision for Family and Dependants) Act 1975. This is on the basis that the deceased’s will (or the distribution of their estate on an intestacy if there is no will) does not make reasonable financial provision for the applicant. For all applicants other than a surviving spouse, the test is what is reasonable in all the circumstances for their maintenance.

In the case of Melita Jackson, who died in July 2004, her estate amounted to a little under GBP500,000, the majority of which she left to three charities: the Blue Cross, the RSPB and the RSPCA. She left nothing to her only daughter, Heather Ilott, who has five children and was described by the Court of Appeal as living ‘in modest circumstances’. When Mrs Jackson made her will, she wrote a letter explaining that she had not left anything to her daughter because they had fallen out many years before. Despite one or two attempts at reconciliation, they became estranged again when Mrs Ilott gave her daughter a name that Mrs Jackson did not like.

After Mrs Jackson’s death, Mrs Ilott challenged her will, and a County Court judge found that the will did not make reasonable financial provision for Mrs Ilott’s maintenance. He awarded Mrs Ilott a lump sum of GBP50,000, to be paid from the estate. Mrs Ilott appealed to the High Court asking for a greater amount, at which point the charities also appealed the County Court judge’s decision, asking the High Court to award her nothing. The High Court judge agreed with the charities and held that Mrs Ilott should not receive any of the estate.

‘In principle, you can leave your estate to whomever you choose, but your decision may be overturned’

Mrs Ilott appealed again to the Court of Appeal, who said the judge was wrong to award Mrs Ilott nothing. The Court of Appeal directed that a different judge should decide how much Mrs Ilott would receive, but strongly suggested that the parties try to reach a settlement to save further legal costs.

This case illustrates that although, in principle, you can leave your estate to whomever you choose, your decision may be overturned by a court after your death. However, it does not necessarily follow that if someone is left nothing in the deceased’s will, their claim will succeed. The question is not whether the deceased acted unreasonably but whether, objectively, it was unreasonable for the applicant to receive the provision (if any) made for them in the will.

Unsurprisingly, a vast range of opinions have been expressed about this case. Some take the view that no one should be able to challenge another’s will, especially when the testator clearly states why they are excluding someone. Others, however, consider it wrong to disinherit members of your own family, no matter what the circumstances.

The court has wide discretion in this type of claim, and must take into account a number of factors, including the financial needs and resources of the applicant and the deceased’s obligations and responsibilities toward the applicant and any other beneficiaries.

The Court of Appeal has made clear that there is no need for an applicant who is an adult child of the deceased to show any special circumstances or a moral claim to receive money from their parent’s estate. However, in the case of an adult child who is able to earn a living, it may be difficult to show that reasonable financial provision was not made.

In the Melita Jackson case, Mrs Ilott’s legal representatives argued that Mrs Jackson had disinherited her daughter out of spite, and relied heavily on the fact that Mrs Ilott had very limited financial means – she and her husband had little income except for state benefits. The charities’ representative pointed out that Mrs Ilott’s financial position was down to her own ‘lifestyle choices’ and drew attention to Mrs Jackson’s letter explaining why she had disinherited her daughter.

The Court of Appeal’s decision is likely to lead to more claims being made where a close relative or dependant has been excluded from someone’s will. To limit as far as possible the prospect of a claim being made, specialist advice should be taken when writing a will. In circumstances such as these, Mrs Jackson may have been better to leave something to her daughter to reduce the likelihood of a claim. It is also vital that, should any dispute arise after death, early expert advice is taken on the rights of all concerned.


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