One of the key reasons solicitors always advise making a Will is to ensure that your inheritance goes to your chosen beneficiaries.
A recent case could change everything about “testamentary freedom” which has long been a central theme of English law, giving you the right to make a Will where you control whomever you wish to leave your property and assets to. That is not the case in many other countries, such as France and Spain, where there are rules of compulsory succession.
A recent Court of Appeal decision has raised many questions about the principle of testamentary freedom and caused consternation amongst those involved in the law of Wills and the administration of estates. The case, Ilott v Mitson and others involved an elderly lady who made a Will leaving everything to three national animal charities. She had a daughter but disapproved of the daughter’s conduct and had been estranged from her for more than 20 years, so she left her out of the Will. The daughter made a claim against the estate and the Court found that the Will had failed to make “reasonable financial provision” for her and that she was therefore entitled to receive a share of the estate.
The decision has caused great uncertainty as to the circumstances in which an adult child who is in reasonable health and capable of work is able successfully to make a claim against their parent’s estate. Some have seen it as undermining the principle of testamentary freedom.
Claims disputing the terms of Wills are becoming more common, but in fact it has been possible for an adult child to make a claim ever since legislation was introduced as long ago as 1938. At first, in order to qualify, it was necessary for the child to have a physical or mental disability, but that restriction was removed in 1975. Since then there have been Court decisions which have suggested that there must be a strong moral obligation on the part of the parent or exceptional circumstances in order for the claim of an adult child to succeed. The Ilott case confirmed that there are no such preconditions and it is basically a question of weighing up all the circumstances in order to decide whether “reasonable financial provision” has been made.
Arguably the Illot case has not changed the law at all, but some have seen it as opening the floodgates to claims by able-bodied, possibly undeserving, adult children. It has even lead to the suggestion that people should consider putting their property and assets in trust in order to head off the possibility of a claim.
If you have a difficult family situation and need advice on making sure your Will reflects your wishes and will be sufficiently robust to limit any claim on your estate, please contact Peter Crix.