08 December 2015

Making your will - can you leave your children out?

Alison Elwess, senior solicitor, takes a look at a recent Court of Appeal case where an estranged daughter contested her mother's will.

There was much comment in the press this summer when the Court of Appeal ruled in favour of making an award to Heather Ilott from the estate of her late mother (in the long-running case of Ilott v Mitson). This was despite a long-standing estrangement between them and the mother’s strongly expressed wish that her daughter should not inherit anything from her.

What does this mean for you if you do not want to pass your estate on to your children?

Under the Inheritance (Provision for Family and Dependents) Act 1975, certain classes of potential beneficiaries, including children, co-habitees and other dependents, are entitled to ask the courts to alter the distribution of an estate if reasonable provision has not been made for their maintenance (spouses and civil partners are treated more generously, and are not limited to provision for maintenance).

When considering a claim, the courts consider various factors set out in this legislation, including the conduct of the people involved, but also their competing needs and financial resources.

Whilst adult children who have been living independently for a number of years typically find it difficult to claim successfully, as they have been meeting their own needs, in the Ilott v Mitson case, Heather Ilott was in very poor financial circumstances and was reliant on state benefits. This was a factor which weighed heavily in her favour.

Another crucial factor in this particular case was that the other beneficiaries of the estate were all charities, who did not, in the court’s view, have competing financial needs in the same way other individual beneficiaries might have done.

Despite the hype, the Court of Appeal did not do anything unusually radical in ordering provision to be made for Heather Ilott; it weighed up the relevant factors and applied them to the circumstances of the case. What it does highlight is the need to take good legal advice if you are in a similar situation to ensure all possible steps are taken to safeguard your wishes.

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