IT’S MY MONEY I CAN DO WHAT I WANT – RIGHT?
In most cases, the answer is yes, however if you want to exclude a child, spouse or civil partner, there is a chance your Will could be challenged and your wishes overruled. If you wish to exclude someone from your Will, it is always best to have an accompanying letter with your Will, explaining your reason why.
One well known example is Ilott v Mitson.
This case was made by Heather Ilott, against her mother, Melita Jackson. Melita passed away in 2004. Heather was an only child, but since the age of 17 had been estranged from her mother who had not approved of her then boyfriend, now husband.
Melita had never forgiven Heather and in her Will created in 2002 she had included a written letter explaining why she had excluded her only daughter. She had left her estate instead to three animal charities. Her estate totalled £486.000.
Ms Ilott contested the Will on the grounds that her mother had not made reasonable provision, under the Inheritance (Provision for Family and Dependants) Act 1975. This allows family to make a claim against an estate if they can show a need for maintenance, but only if the estate can provide it.
Having argued that she should receive a share of her mother’s estate the courts initially awarded her £50000 in 2007.
After appealing this award, the courts overturned the first ruling and awarded Ms Ilott £164000. This was enough to buy her housing association home, leaving her with £20000 towards home improvements.
The Judge stated that Melita Jackson had “acted in an unreasonable, capricious and harsh way towards her only child”.
As well as this the charities she wished to leave her estate to had no connection to Ms Jackson and had no previous expectation of benefiting from her estate.
This decision was then overturned by the Supreme Court and the original award of £50000 was granted.
The significance of this case show that the testator must clearly be able to demonstrate their reasons for disinheriting a child. It can be argued that if Ms Jackson had some connection with the charities, for example volunteering for them, then the outcome may have been different.
Does this mean my wishes will be ignored?
This ruling does not prevent you from disinheriting, however it does show the need to demonstrate a good reason why and the ability to explain why you wish to benefit someone else.
A lot can be gained by making a Will. Without a Will Ms Ilott would have received the entire estate under intestacy rules.
One way to avoid challenges is to make a trust. A trust’s funds does not fall under the Inheritance (Provision for Family and Dependants) Act 1975 and therefore any non-beneficiary would not be able to benefit from the trust assets.
All in all, this claim took 10 years to be settled.