Why a Will gives you control over your assets

September 2015

Many of you may be familiar with the recent case of Heather Ilott who made a claim against the will of her mother, Melita Jackson, who left the residue of her estate to three charities with her wishes clear that, when she died, Heather was not to inherit. However, the Court of Appeal awarded Mrs Ilott a substantial sum from the estate.

The headlines surrounding the case have raised doubts as to whether making a will gives any certainty on death. Despite the newspaper reports, the answer is yes; actually the case has changed little. Even before the decision, the law allowed disappointed adult children to claim against an estate if they believed they had been overlooked.

The court looked seriously at three main points.

First, they considered the fact that Mrs Ilott and her family were almost entirely supported by state benefits. Secondly, the court found that the testator, Melita Jackson, had been “capricious” in her decision to leave her daughter out of her will. Mrs Ilott left home at 17 to marry, which her mother objected against from the outset and they never reconciled. The third main point related to the fact that the residual beneficiaries in the will were all charitable organisations.

On the first point, the appeal court looked at an earlier court decision to award Mrs Ilott £50,000 from the estate. They decided that this was not enough. The family would for a time have lost their entitlement to benefits, but after the funds were spent would have been in exactly the position that they were before. Mrs Ilott had the chance to buy their housing association house and the award made was calculated to be enough to allow the purchase to take place, with about £20,000 left over for furniture, fittings and a few luxuries.

On the second point, the court decided that Mrs Jackson should have been more forgiving and taken a reasonable view of the success of her daughter’s family life. They reviewed evidence of the attempts to reconcile the family over the years and decided that Mrs Jackson had been less amenable to a reconciliation than she should have been. For example, one attempt to resolve matters failed because Mrs Jackson objected to the name given to one of her grandchildren. So the decision to disinherit Mrs Ilott was considered unreasonable.

The final point, relating to the charities, required the court to consider the terms of the law that allowed Mrs Ilott to challenge the will. It says the court must balance the situations of those included in the will with those making a claim on the estate. The court decided that Mrs Ilott was clearly in need of help however, as organisations, the charities could not prove they needed anything from the estate, particularly given that none of the organisations had any relationship with Mrs Jackson and seemed to have been chosen at random.

So where does this case leave us? The law that allows challenges to be brought by disappointed children has existed for many years. Not all are successful and given the particular facts of this case it has probably changed matters less than might have been thought.

But there are some points to consider. For example, if a parent decides to disinherit a wayward child, it will be important that evidence shows the child has behaved so badly that forgiveness is not really an option. For those with this problem, leaving the estate to charities with whom they have no connection could also be a difficulty, but one possibly addressed by developing a relationship in their lifetime.

If you require advice on making a Will or managing your estate then please contact our Wills and Probate team.