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Testamentary freedom & Inheritance Act claims

Posted on 9th December 2015 in Legal Updates

The press labelled the case of Ilott v Mitson as a ‘landmark decision’, but this is misleading. Wills and probate executive, Vicki Gulliver explains how there has in fact been no change to the law and that the reporting of this case has been rather sensationalised. 

The Court of Appeal re-visited their decision in the 2011 Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) case of Ilott v Mitson, in which an estranged adult daughter won a share of her late mother’s estate on the basis that the will failed to make reasonable financial provision for her.

The 1975 Act allows for wills to be varied to provide for any person who believes (and the court agrees) they have been excluded or short-changed. The general principle in English law is that of testamentary freedom, so you can leave your estate to whomever you choose, and have no legal obligation to provide for any particular person. However, the 1975 Act is more to do with moral obligations, and allows the court to ‘override’ the general principle of testamentary freedom in certain situations where it is just and equitable (such as for spouses and children who were financially dependent on the deceased during their lifetime).

Traditionally, it has been difficult for adult children to bring a successful claim under the 1975 Act when they are financially independent and capable of making their own living. It has always been possible to bring these claims under the 1975 Act, but they have been rare and remain difficult to win. In this case, the court held that the will did not make reasonable financial provision because the daughter was in difficult financial circumstances, she had five children to support, the estate was large, she was the only daughter, the reason for the estrangement between the two was the fault of the mother, the daughter had attempted to reconcile during lifetime, and the mother had no particularly close association with the charities she had chosen to benefit in her will or any interest in their causes.

In 2011 the claimant won £50,000 of the £486,000 estate but this has now increased to £164,000. The rest of the estate will go to the charities named in the will.

The principle of testamentary freedom still stands, but best practice is to provide comprehensive details at the time of giving instructions for the preparation of a will. Include any justification for disinheriting a child, to minimise the possibility of a challenge to a will.

For more information please contact Vicki Gulliver on 01789 206916 or at vicki.gulliver@lodders.co.uk

Vicki Gulliver, Lodders Solicitors

Vicki Gulliver, Lodders Solicitors

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