A legal judgment could make it easier for adult children to challenge a will

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If you’ve written a will, you’ll probably assume that everything you’ve said will be acted upon after you’ve died. But that’s not necessarily the case. The Court of Appeal ruled that a woman who’d not been left any money in her mother’s will should receive £163,000. Morguefile_agendaspine

Q. What did the will say?

A. The will in question was left by Melita Jackson, who’d been estranged from her only daughter, Heather Ilott, since she was 17. In her will, Mrs Jackson left her estate, worth around £485,000, to be split between three charities – the RSPB, The Blue Cross and the RSPCA. There is no evidence that Mrs Jackson funded these charities while she was alive.

A separate gift of £5,000 was to go to the BBC benevolent fund. Melita Jackson’s late husband had been an engineer for the BBC.

Mrs Jackson left two letters with her will saying that she didn’t want her daughter to receive anything, and that if her daughter challenged the will her executors should fight this claim.

Q. Why did the court award money even though the will said the daughter shouldn’t receive anything?

A. Having read the Court of Appeal judgment in Ilott v Mitson (and others), which you can read on the Family Law website, there are several factors that the judges took into account.

Firstly, they said that even though Heather Ilott said she’d not expected to receive anything from her mother’s will, that didn’t mean she wasn’t entitled to receive anything.

Secondly, the fact that she and her husband lived on a very modest income (made up mainly of her husband’s self-employed earnings and benefits) was a factor. The judges said the Inheritance (Provision for Family and Dependants) Act of 1975 meant they had to consider whether ‘reasonable financial provision’ had been made for Mrs Jackson’s daughter.

Thirdly, the judge took into account the fact that those that stood to benefit from Mrs Jackson’s will (namely the charities) didn’t have an expectation that they would inherit.

In fact, it was an earlier court ruling – in 2007 – that said Heather Ilott should receive some money from her late mother’s will and that Mrs Jackson had been unreasonable to leave her daughter out of her will. This week’s ruling increased that amount from £50,000 to £163,000.

Q. Does a parent have to leave their money to their children – even if they don’t get on?

A. In English law we don’t have ‘forced heirship’ where a parent has to leave money to their children in all circumstances. However, in England and Wales (there’s a different system operating in Scotland) close family members, such as a wife or husband or child, can go to court for a share of someone’s estate when they die, if they’ve not been provided for.

There is a range of factors that a court will look at, and many cases don’t succeed. It’s not an automatic right for anyone related to the person who’s died to receive money.

Up until now, it’s often been quite difficult for adult children to show that they should have been left some of the money, says Paula Myers, the national Head of Wills Disputes at Irwin Mitchell. “For a claim to succeed, adult children normally have to show they’ve been maintained financially – namely that they’d received money from the parent while he or she was still alive.”

But in this case, the daughter had virtually no contact with her mother since she was 17 and so hadn’t been maintained by her mother at all. However, the Court didn’t think that meant Heather Ilott should not inherit some of her mother’s money and property.

Q. Why did Heather receive a third of her mother’s estate?

A. In a previous court ruling, Heather Ilott had been awarded £50,000. This week’s judgment increased that to £143,000 (which is the amount that Heather Ilott would need to buy the social housing property she currently rents) and £20,000 in cash, which would provide a modest income (of approximately £300 a year, making £163,000 in all.

Q. I’ve written a will and I’ve not left anything to one or more of my children. Will they be able to challenge it?

A. This judgment has probably made it easier for adult children to bring a claim against their parent(s) for not including them in their will. It doesn’t guarantee that a child – or another relative – will succeed. But (in my view) this judgment attaches more importance to the daughter’s current and future likely standard of living and the judges looked carefully at whether Mrs Jackson’s decision was reasonable and whether it resulted in ‘reasonable’ financial provision.

The fact that Heather’s mother had a valid will and had left a letter of wishes setting out very clearly why she thought her daughter shouldn’t inherit didn’t mean the will had to be adhered to. I’ve read a transcript of the letter and it doesn’t mince its words. It couldn’t be clearer about the fact that Mrs Jackson didn’t want her daughter to inherit a penny. However, this judgment reinforces what the law in England and Wales says, which is, whatever someone says in their will, the outcome should not be unreasonable for their family and dependants.

Related articles:

10 ways to make sure your will isn’t challenged

When can you challenge a will? How a will can be contested

Getting hold of a copy of a will

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