One of the fundamental principles of English law is of testamentary freedom. Unlike some other European countries, everyone in England and Wales is free to leave their estate to whoever they wish; there are no forced heirship rules governing who we have to leave our estate to.
That being said, in certain circumstances someone can issue a claim against a deceased’s estate / contest the will under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).
Claims under the Act are brought by people who claim that the deceased supported them but whose Will does not leave adequate provision for them. Historically the claimant had to show that they were being supported financially. However, the case of Ilott v Mitson [2015] has sought to widen this principle.
The facts of the case
Mrs Ilott issued a claim against her mother’s estate and contested the will based on the fact that after she was deliberately excluded from her mother’s Will. The parties had been estranged for over 25 years and in response, the mother left the majority of her estate to three animal charities. Mrs Ilott was receiving state benefits and claimed that her mother had a duty to provide for her, especially so because a large share of the estate resulted from compensation paid to her mother following her father’s death in a workplace accident before she was born.
The case reached its final decision in 2015 whereby the Court of Appeal found in favour of Mrs Ilott and that her mother had acted in an “unreasonable, capricious and harsh way”.
Crucially, the Court considered it relevant that the deceased did not have any connection with the charities during her lifetime, nor any particular love or interest in animals. The Court therefore awarded Mrs Illot £164,000 which would enable Mrs Ilott to purchase her council property and retain some for immediate income support.
Going forwards, how to reduce the threat of a contested will
The key thing to note from this judgment is that the case proceeded this far because the deceased’s will was so unreasonable; it completely excluded her only child and instead left the whole estate to charities to whom she had no connection. Had a small provision been left for her daughter, it may not have been so analysed.
There are many scenarios where a testator may wish to exclude someone e.g. family rifts and estrangement, or someone may have already received their inheritance during the life of a testator.
Following the decision of Ilott v Mitson, it would be prudent that the Will is drafted to reduce the threat of a successful claim. This could be done by:
- Providing a clear and reasoned statement within the will outlining the reasons for the exclusion. This should be as objective as possible and not overly harsh. It may be helpful to include evidence which could be provable later, i.e. the earlier advance of funds;
- Considering the origin of the assets. Should a surviving spouse want to exclude an adult child following the death of the child’s other parent, the survivor may want to consider leaving a provision to reflect the deceased parent’s assets. Again, an explanation setting out this rationale could be crucial later.
If you would like to discuss making a will or if you think you have been unfairly excluded from a Will or if you wish to contest a Will, please do not hesitate to contact our specialist Wills and Probate solicitors in Leeds, Wakefield or Manchester on 0113 244 9931 or click here to get in touch online.
