Update - Wills

Do we have a choice?

In what has been described as a “landmark” case (Ilot v Mitson) in relation to testamentary freedom, a daughter was awarded the sum of £164,000.00 from her late mothers’ estate despite the fact that the Will made no provisions for her to receive anything.

Facts of the case

The daughter, Heather Jackson ran away from home at the age of 17 to live with her partner Nicholas Ilot who she later married and became Heather Ilot. Due to this, the relationship between Heather and her mother, Melita Jackson became estranged.

Heather and Nicholas went on to have five children and at the time of Melita’s death they were living on state benefits in a housing association property.

Melita died in 2004 and she left her entire estate, worth approximately £500,000.00 to charities with whom she had no previous connections.

Heather made a claim against her mother’s estate on the grounds that there was not “reasonable financial provision” made for her under the Will. The Court of Appeal awarded Heather £164,000.00.

The award of £164,000.00 was calculated on the basis that Heather would be able to purchase her housing association property and also benefit from a small cash provision. It was noted that this award would still enable Heather to be able to claim state benefits.

What does this mean?

The decision in Ilot v Mitson does not change the fact that a testator has freedom of testamentary disposition when making a Will i.e. if they wish they can disinherit estranged children and other classes of beneficiaries. However, it does increase the possibility that more claims may be brought by unsatisfied beneficiaries.

It is important to note that the decision in Ilot v Mitson was decided on the specific facts of the case and it appears that Heather's claim was strengthened by the fact that she had very low resources and that there was no real reason why Melita had decided to benefit the charities named in her Will.

If you are intending to make a Will which does not provide for your children or other classes of beneficiaries that would generally expect to inherit under your Will you should take advice from a qualified professional. Although you will not be able to stop a claim being made against your estate you may be able to reduce the chances of any claim being successful. Clear reasons should be recorded as to why you are disinheriting a certain beneficiary and why in their place you are choosing to benefit another individual or a charity.

If you have any questions or would like to discuss making a Will, then please call our Wills and Estate Work team on 01302 327257.