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Testamentary freedom in English Law – is it being eroded?

Is testamentary freedom being eroded? We discuss a recent case where a disinherited adult child successfully challenged a Will that left everything to Charity.

Laura Bywater

by Laura Bywater

calendar_month 24 Jul 17

schedule 4 min read

It has long been a core principle in English law that people are able to leave their property to whomever they choose in their Will. The purpose of this article is to examine whether this principle still holds true in light of the recent Supreme Court judgment in Ilott v Mitson.

The Ilott Judgment, delivered in March 2017, came at the end of a ten-year long course of litigation. The facts of this now infamous case are that the mother who wrote the Will died after being estranged from her daughter for twenty-six years. The mother disinherited her daughter by Will and left her substantial estate to three animal charities. Following the mother’s death in 2004, the daughter Mrs Ilott claimed against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, on the basis that the Will failed to make adequate provision for her.

At first instance the District Judge upheld the claim and awarded Mrs Ilott £50,000. The charities appealed to the High Court, where it was held that Mrs Ilott’s claim failed. She then successfully appealed in the Court of Appeal who held that her claim should succeed. The High Court then upheld the District Judge’s award of £50,000. This was later overturned by the Court of Appeal, who awarded Mrs Ilott the staggering sum of £143,000. The rationale behind this was to allow her to purchase her house. The award included a further option for Mrs Ilott to draw down a further sum of £20,000 at will. It was the charities’ appeal which gave rise to the Supreme Court’s March judgment.

The Supreme Court

The Supreme Court overturned the Court of Appeal’s award and re-instated the original award of £50,000.

The judgment has been hailed as a major victory for the charities and a fight back for testamentary freedom. But is this true and what does it mean for the future?

Whilst it is correct that the charities succeeded on appeal, the fact remains that Mrs Ilott emerged with £50,000. If she had not challenged the Will, she would have received nothing. Challenging the Will was definitely worthwhile for her and most disinherited adult children would regard this as a sum worth fighting for.

The Ilott case has generated a lot of media coverage and publicity over the past decade. This will have brought the provisions of the 1975 Act to a wider section of the public, who may have been unaware of it beforehand. We are already seeing a 20 percent increase in the number of Wills that are being challenged by adult children. The recent judgment is likely to do little to deter further claims.

Wills can be challenged

The fact remains that unfortunately Wills can and will continue to be challenged by adult children who have been cut out. This will unfortunately give little succour to clients who may have legitimate reasons for wanting to leave one or more children out of their Will. When deciding who you want to benefit under your Will, it is necessary to carefully consider the possibility of a challenge after your death by anyone who may have expected to benefit but does not.

Although there is no way to eliminate the possibility of a challenge to your Will after you die, there are steps that can be taken to discourage such a challenge and would make it more difficult for a claimant to succeed. For advice, please get in touch today, call 03333 058375 or email WealthProtection@psg-law.co.uk

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