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A Last Will and Testament is one of the most important documents that a person can create in their lifetime. In theory, a Will is a legally binding declaration, but in many circumstances Wills can be challenged, especially by family member claimants who believe they have not been adequately provided for within the Will.

The recent case of Ilott v Mitson has changed the way private client Solicitors should consider Wills and Inheritance.

The case, which had been ongoing since 2004, centred around the Will of the late Melita Jackson, who wished to leave her entire half a million pound estate between three animal charities – the RSPCA, RSPB, and Blue Cross. The fly in the ointment, however, was that Mrs Jackson left an estranged daughter, Mrs Ilott, who was excluded from benefiting under the terms of the Will. Mrs Jackson’s last Will was signed in 2002, two years before her death.

In this country, unlike in much of Europe, on the face of it a person has the freedom to leave their assets to whoever they choose.  However, the Inheritance (Provision for Family and Dependants) Act 1975 effectively allows a Will to be challenged if someone can show that they should have been provided for under a Will and were not, or that the financial provision was not reasonable. The catgegory of people who can make an Inheritance Act 1975 claim include a spouse or civil partner, an ex-spouse or former civil partner (who has not remarried), a child (or someone treated as a child) of the deceased, a cohabitant of the deceased, or someone who was being financially maintained by the deceased immediately prior to the death.

In this case, at the initial hearing the court found in favour of the estranged daughter and awarded her £50,000. The daughter, however, appealed on the basis that she wanted more, and her appeal was rejected. Nonetheless, late last year she was given leave to appeal again, an action which resulted in her award being more than trebled, to £163,000.

Lady Justice Arden, who had presided over the case, called for a balance between the testamentary wishes of the deceased and the claims of Mrs Ilott for reasonable financial provision under the Inheritance Act 1975. Furthermore, she ruled in the Court of Appeal that Mrs Jackson had been “unreasonable, capricious and harsh” in not including her daughter as a beneficiary, and on that basis Mrs Ilott should be awarded the money.

The three charities, who had initially been in line to benefit from Mrs Jackson’s estate, are now appealing this decision and we await the Supreme Court's decision in Autumn of 2017

This does also open the door for, especially in more complicated cases, a very different interpretation of a Will. More often than not this will come down to considering things differently rather than an error as to the application of the law, which means there is always a risk in litigation like this of re-emphasising the importance of doing all that you can to prevent it in the first place. The case also highlights the importance of taking proper advice when putting a Will in place with, as the decline of the “traditional” family and the rise of “blended” families increases, an open discussion about any difficult family circumstances being a key part of that. It also highlights the importance of taking any steps that you can prior to the event to head off such court proceedings.

Whilst a valid Will should be legally binding, the presence of the 1975 Act means that for it to be fully effective it is much more than just a case of signing a document, with the need to consider wider factors. 


What does this mean for Wills?

The decision in Ilott vs. Mitson should inform the discussions and advice given when any Will is made, and the case highlights the importance of providing detailed reasoning as to why you have chosen not to include a specific beneficiary, who in normal circumstances might expect to receive something, in your Will. Without sufficient reasoning, the Court may be inclined, as evidenced by the ruling in Ilott vs. Mitson, to view such an exclusion as unreasonable. In addition, if a testator chooses to leave part of their estate to a charity or other party, it is strongly recommended that they provide clear, tangible evidence of their connection to that party, thus providing sufficient reasoning as to why they should benefit from the estate. Whilst this will not guarantee your Will protection against an Inheritance Act 1975 claim, it will help to strengthen the case against it.

Given the mine field that this landmark case has made, it is important that you taken independent specialist legal advice when making a Will

Please contact either David Acklam or Denise Bond on 01254 872272 to discuss this in more detail 

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