Cutting someone out of your will – what could go wrong?

Choosing to disinherit a close family member from a will is more common than you might think. Some parents do so because they have a falling out with their child, others because they think other family members are more deserving or in need of a bequeathment.

27th April 2018

If you want to exclude a child from your will, you may need to make your reasons clearer than ever – thanks to caselaw, there’s a stronger chance than ever that your wishes could be overruled, even if they are in your will.

What happened?

The case was brought in 2015 by one Heather Ilott against her mother, Melita Jackson, who passed away in 2004. Ms Ilott, an only child, became estranged from her mother at age 17 after leaving live with her boyfriend (now husband).

Ms Jackson never forgave her, and with her final will, created in 2002, she included a letter explaining her reasons to disinherit her daughter. She instead left her entire £486,000 estate to three animal charities.

After her mother’s death, Ms Ilott contested the will, on the grounds that Ms Jackson had not made “reasonable provision” for her.

The Inheritance (Provision for Family and Dependants) Act 1975 allows for family and dependants to apply for provision from the estate of someone who has passed away, if they can show that it is needed for their maintenance (and that the estate can provide for it).

Ms Ilott argued that she should receive a share of her mother’s estate. The courts agreed – she was initially awarded £50,000 back in 2007.

After having this ruling overturned, she took the case to the court of appeal, who ruled that Ms Ilott should receive £164,000, enough to buy her housing association home and leave her with £20,000 to supplement her and her husband’s income.

The case was then heard in the Supreme Court who overturned the decision by the Court of Appeal to increase her claim to £164,000, but upheld the original Courts decision to award her with £50,000.

How could this happen?

Melita Jackson left specific instructions for the executors of her estate to resist any attempts from her daughter to challenge the will. However, they were ultimately unable to prevent appeal judges from awarding a portion of the estate to Ms Ilott.

The judges decided that, despite her mother’s objections, Ms Ilott should receive some provision from the estate. Ms Ilott is a full-time mother of five children; she receives benefits, and has no pension. Her family’s only other source of income is from her husband’s work as a mechanic.

Judges said that Ms Jackson had “acted in an unreasonable, capricious and harsh way towards her only child”.

Another key factor behind the decision was the fact that Ms Jackson had “no connection” to the three charities who stood to benefit from the Will – Blue Cross, RSPB and the RSPCA.

Regardless of her mother’s wishes, Ms Ilott believes that her father, who died before she was born, would have wanted her to benefit from the estate. “This was money my mother inherited as a result of my father’s death and, regardless of how she felt about me, I strongly believe he would have wanted provision made for me,” she said.

Does this mean that wills can be ignored?

This is not the first time that someone has thwarted a parent’s attempt to disinherit them – far from it.

However, this case is significant as it shows that a testator must clearly explain or demonstrate their reasons for disinheriting a child. Ms Jackson’s lack of connection to the charities named in her will was a determining factor in this case – if she had worked with or donated to the charities during her life, it could have made a difference.

a testator must clearly explain or demonstrate their reasons for disinheriting a child

“This ruling means that people can still disinherit their children but will have to have a good reason why and be able to explain what connects them to the people or organisations that they have included in their Wills instead,” said Paula Myers from Irwin Mitchell.

She added that the case showed that adult children can be successful in challenging a will without necessarily having a ‘moral claim’.

Meanwhile, the charities named in Ms Jackson’s will were less than thrilled by the Court of Appeal ruling and the impact it could have on “legacy” donations. In a joint statement the charities said that they were “very concerned about the long-term implications for the charitable sector”.

“Charities rely upon income from legacies and the outcome of this case could have serious ramifications for the future of the charity sector as a whole,” they added.

James Aspden, who represented the charities in the case, added that the ruling was “a worrying decision for anyone who values having the freedom to choose who will receive their property when they die”.

The Supreme Court’s ruling which was pursued by the respective charities has to some degree restored an individual’s testamentary freedom to leave their assets to whoever they wish on death. This is likely to reduce the success rate of grown up children who are not financially dependent bringing claims against an estate.

However, as seen in the case of Ms Jackson the Courts still agreed that her daughter should inherit against her express wishes just not to the extent that her daughter was claiming. Therefore under the Inheritance (Provision for Family and Dependants) Act 1975, a dependent can be successful with a claim on an estate if they can show that it is needed for their maintenance (and that the estate can provide for it).

How do I keep my wishes safe?

Here are a few things you can do to make sure your will is upheld when disinheriting a family member.

Make a will

It’s an obvious suggestion, but one that needs to made – the majority of UK adults have no will. Melita Jackson’s will might have been partly disregarded, but it would have been worse if she had made no will at all – without a will, she would have died intestate, meaning that her daughter would have received everything.

Make your reasons for disinheriting them clear

Ms Jackson made it clear that she did not want her daughter to inherit anything from her – as well as commanding her executors to resist any challenges from her daughter, she once wrote in a letter to her lawyers: “I can see no reason why my daughter should benefit in any way from my estate.”

However, failing to demonstrate why she had left her estate to charity proved to be her undoing. It was unclear why she left money to the three charities, as she had no clear connection to them, and did not leave any explanation as to why she had chosen to benefit them.

Mark Woodman from DAS Law says: “Section 3 of the Inheritance Act 1975 lists the factors the court must have regard to when determining whether a deceased’s Will makes reasonable financial provision for the applicant, and if not, what provision to make.

“Awareness of these factors will allow careful preparation of the reasons why you have decided to take such action, as this would be the best line of defence in any future Inheritance Act 1975 claims from a disinherited child.’

As well as making your reasons for disinheriting them clear in your will, you should also tell your family, especially those you are planning to disinherit.

This may be difficult, particularly if you are estranged from those family members – however, if your disinheriting of them comes as a nasty surprise to them, they are more likely to challenge it. If you have chance to talk to them about it, they may be more understanding.

Use a trust instead of a will

One way of avoiding challenges is by making a trust instead of a will. A trust can be used to specify beneficiaries after you die – however, they cannot be challenged in the same way that a will can.

one way of avoiding challenges is by making a trust instead of a Will

Ms Ilott’s challenge against her mother’s will was brought under the Inheritance (Provision for Family and Dependants) Act 1975 – however, this act doesn’t cover assets and money contained in a trust. As a result, an aggrieved non-beneficiary would not be able to get any provision from the trust.

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