Can your Will be ignored?

30/07/2015
Can your Will be ignored?

Often much is made of the fact that under English Law, provided you are over the age of 18 and have full mental capacity, you are free to leave your estate to whoever you wish in your Will. This general rule has been subject to the provisions of the Inheritance (Provision for Family and Dependants) Act introduced in 1975, where essentially spouses, cohabitees, children and other individuals connected to the deceased may have a claim against a deceased’s estate on the grounds that the provision made for them under the deceased’s Will was not reasonable .

It is fair to say that to date it has proved difficult for adult independent children to make a claim. Essentially under the Act they were required to show that they were maintained (wholly or partly) by the deceased up to date of death and/or the deceased was under a moral obligation to the applicant in that it was reasonable for the applicant to expect provision to be made under the deceased’s Will.

However, the recent decision by the Court of Appeal in the case of Mrs Heather Ilott could prove to be a landmark ruling in this area. When Mrs Illott’s mother died in 2004 she had made it crystal clear she did not want her estranged daughter to benefit, and so left her estate to animal charities despite having little connection with them. The relationship between mother and daughter had soured when, aged 17, Heather Illott had eloped with her future husband. The Court of Appeal ruled that Mrs Illott’s mother had been “unreasonable, capricious and harsh” and had unreasonably excluded Mrs Illott from her estate. The Court awarded Mrs Illott a third of her mother’s estate.

Certainly this ruling significantly weakens a person’s right to choose who will receive their property when they die. However this should not deter people from making Wills – relying on the intestacy rules is for most people totally unsatisfactory. What will be important is that when drawing up Wills people will need to get proper advice and explain their reasons for why they have left money to certain parties and demonstrate tangible connections to them.

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