Some countries have forced heirship rules which mean that individuals have to gift their estate in a particular way, for example to benefit their spouse and/or children. However in England and Wales, individuals have the freedom to leave their assets to whomever they wish, when they die.
They can choose to exclude their children, their spouse, their partner or any other person who may expect to inherit. However the law does provide a mechanism for certain individuals (spouses, children and financial dependents) to make a claim against the estate for financial provision, under the Inheritance (Provision for Family and Dependents) Act 1975 ("the 1975 Act").
The Supreme Court's recent decision in the case known as Ilott v The Blue Cross and others concerned an application by an adult child, who had lived financially independently from her mother for many years but who was disappointed not to have received anything from her mother's estate on her death.
Heather Ilott was the only child of Melita Jackson. She left home at the age of 17 and had been estranged from her mother for 26 years at the time of Mrs Jackson's death in 2004. Mrs Jackson left a net estate of £486,000 and made a will in 2002 gifting her estate in equal shares to the Blue Cross, RSPB and RSPCA. At the same time she prepared the Will, Mrs Jackson wrote separate letters explaining her reasons for excluding Mrs Ilott from her will.
As a child of the deceased, Mrs Ilott brought a claim under the 1975 Act on the grounds that she had been denied reasonable financial provision from the estate and that she had a financial need. In 2007, the judge at first instance awarded Mrs Ilott £50,000 from the estate. He considered her financial position and the fact she was on benefits and the size of the estate in reaching his decision. The charities appealed the decision as did Mrs Ilott as she did not think £50,000 was sufficient. This resulted in numerous court hearings over many years and the Court of Appeal finally awarded Mrs Ilot £143,000 to allow her to buy her council house, plus the expenses for acquiring it, with an option for a further £20,000 for additional expenses. This equated to approximately 1/3 of the estate.
The charities were concerned about the impact of the Court of Appeal's decision on other cases where financial provision might be sought. The charities therefore appealed the decision to the Supreme Court which had to decide essentially which of the decisions was correct. The case received much press coverage and seven judges at the Supreme Court unanimously held that the Court of Appeal should not have increased Mrs Ilot's award and that the original award of £50,000 should be reinstated.
The Supreme Court emphasised the importance of testamentary freedom in this Country. The testator's wishes are paramount although the Court can interfere with it in limited circumstances. However the relationship between the individuals is important in assessing any claim. It demonstrates the importance of documenting your reasons for any exclusion and seeking professional advice. Steps can be put in place to reduce the chances of your will being challenged if you wish to exclude someone from your will. However the Court can still make an award to someone who is maintained by you during your lifetime.
If you would like further guidance in this matter please contact me on 01392 685275 or email [email protected]