Does Cut Out Mean Shut Out?

by | Sep 21, 2016 | Blog Posts

One of the main principles of the law of England and Wales is testamentary freedom – you are free to leave your estate to whoever you choose, however you choose. This is different to many other European countries. In France for example, there are strict rules governing rights a child may have towards its deceased parent’s estate.

“That doesn’t sound fair for people who have been unreasonably written out of a deceased’s will – is there anything I can do?”

While this rule of law has existed for many years, helpfully, for people who may have been unreasonably written out of a close relative’s will, there have been various changes over the years to protect those who have been unfairly missed out.

Inheritance (Provision for Family and Dependants) Act 1975

Under the Inheritance (Provision for Family and Dependants) Act 1975, if the will of a deceased does not provide for a certain class of people or someone who the deceased maintained during their lifetime, then that person may have a claim against the estate for reasonable financial provision.

Who can claim?

The following classes of people may be eligible to issue a claim against the estate:
1. The spouse or civil partner of the deceased;
2. A former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
3. Any person who was living in the same household deceased for the two years prior to death as either their spouse or civil partner;
4. A child of the deceased;
5. Any person (not being a child of the deceased) who was treated by the deceased as a child of the family; and
6. Any person (not included in the preceding paragraphs) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

This type of claim is one of the more common types of contentious probate claims and there is case law deciding who may be able to claim. Under the categories above, an adult child who is not being maintained by the deceased at the time of death would not be able to claim, however there has been a recent case which has sought to widen the principle further.

Ilott v Mitson [2015]

Mrs Ilott issued a claim against her mother’s estate 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.

Is there a time limit?

Yes, a claim needs to be brought within 6 months of the grant of probate or administration.

If you want to discuss a potential contentious probate claim, please contact our specialist team of solicitors on 0113 244 9931.


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