When a Will is not necessarily the way

Mrs Jackson and her only child, her daughter Mrs Ilott, fell out long ago – when Mrs Ilott eloped and married Mr Ilott at the age of 17. That rift never healed despite some attempts at reconciliation and Mrs Jackson made a Will in her later life which gave her daughter nothing at all. She left everything to various charities with whom it did not appear she had any special connection.

Under the Inheritance (Provision for Family and Dependents) Act 1975 parliament gave family members, including adult children, the right to apply to the court to ask for an order for some provision from the Will. This is not so much a matter of declaring the Will to be invalid – that is a different thing altogether – but simply a request that the court might intervene and make an award, effectively changing the terms of the Will.

The case rumbled on through three courts and ended up yesterday in the Supreme Court, who, after various appeals decide that the original  judge had made the correct award - £50,000 to the daughter out of a total estate of £500,000 – one tenth in this case.  She appealed and got £143,000 to buy a house plus £20,000 cash. The charities appealed and today the daughter is back to £50,000.

There are no clear guidelines as to how you should award to adult children, except generally to say that any award should be for maintenance, not for a capital windfall, although that can be provided by way of a lump sum, which is what happened here.

The court was aware that Mrs Ilott was on means-tested benefits so would lose her benefits unless she was able to justify expenditure of all or most of that money on essential household or living necessities. They still made the award.

So, where are we now with the issue of leaving out an adult son or daughter? It happens, in our experience, quite a lot and we have to give careful advice to our clients when it comes up.

What do we advise?

  1. There is a danger that a disappointed son or daughter might well make a claim.
  2. There is nothing you can do to prevent that.
  3. There are ways to make it less likely that a claim will be made.
  4. Come and see us and we’ll tell you how!  

To read the full details of Mrs Ilott's case please click the link here.

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