Free Will?
Posted by Susan Hart on 3rd August 2011
A survey last year found that although 30 million Britons are currently without a will, 92% know who they want to receive their assets when they die. But the recent case of Ilott v Mitson has emphasised the fact that, even when we make a will, our wishes may not be paramount, especially where provision for our children is concerned.
Parliamentary Interference
As long ago as 1938, parliament attempted to balance the needs of dependents with the rights of testators. This was refined further in 1975 by the Inheritance Act which allows an applicant, including an adult child, to make a claim on the basis that the way in which the deceased has left his assets does not “make reasonable financial provision” for that applicant. The Act sets out seven factors for the court to take into account when assessing the merits of any claim.
The facts
The facts of the case were that Mrs Jackson died in 2004 aged 70, leaving the bulk of her £468,000 estate to three animal charities. Mrs Jackson’s will made no provision at all for her only child, Mrs Heather Ilott. Mrs Ilott, who was aged 50, was a married woman with five children, living in modest circumstances. Mrs Ilott had left home when she was 17, and mother and daughter had only seen each other twice since.
Mrs Jackson wrote to her daughter to tell her what the will contained. She also left a carefully worded letter of wishes stating that, because of the estrangement, she had not left any money to her daughter.
The decision
However, despite the clear wording of the letter and the obvious fact that Mrs Ilott was not financially dependent in any way on her mother at the date of the mother’s death, the original judge found for Mrs Ilott and awarded her £50,000. Although this decision was overturned on the initial appeal, the Court of Appeal upheld the judge’s approach stating that he had correctly balanced the factors set out in the 1975 Act. This meant that more weight was given to Mrs Ilott’s financial circumstances than other factors, such as Mrs Ilott’s behaviour towards the deceased, and the deceased’s feelings towards her daughter, as recorded in her letter of wishes.
The wider implications
The implications of this case are important to those in the agricultural community wanting to use their will to leave the farming unit intact to the farming son/daughter, rather than dividing it between all their children.
What can be done to ensure that the testator’s wishes are carried out and to minimise the risk of an expensive claim from the non-inheriting children, which could destroy the whole farming enterprise?
Some suggestions would be:
- explain to the family why the provisions have to be as they are
- leave as much as possible to the non-inheriting children
- leave a letter of wishes emphasising the financial independence of the other family members, rather than their conduct
- insert a clause in the will stating that those challenging it will forfeit any assets actually left to them
- put the farm in a discretionary trust
But none of these actions are foolproof and it is essential that professional advice is obtained at the earliest opportunity.
