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.