We have written (in the Scotsman and Third Force News) about earlier stages of the Melita Jackson will dispute case. We have also previously blogged on the issues the case raises, from both the perspective of charities and inividuals in Scotland. The Supreme Court has now made its decision and these are some initial thoughts on what it means.
As far as charities are concerned, the decision still puts legacy income at potential risk. While the daughter ‘lost’ this case she will still get more than her mother stated in her will and the charities will get less than had been specified. The ruling also raises issues for charities about getting involved in court cases and the risks and rewards associated with doing so, set against their trustee duties. Charities will also have to ask themselves whether the cost of litigation is worth the potential financial reward.
While it may appear from this ruling, in which English law applies, that courts can “re-write” wills and overturn an individual’s final wishes, in Scotland the rules are very different. Here, children have certain protections under law that prevent them being cut out of an estate, however this can mean that an estate can pass to individuals that the parent would rather had not benefitted.
In Scotland, Heather Ilott, as a child, would have been automatically entitled to one-third of her mother’s estate, which would have been contrary to her mother’s wishes. This case highlights the fact that individuals in Scotland have to consider different rules, which give certain relatives automatic entitlements, and need to take proactive lifetime planning to make sure that their wishes are actually enforced when they die. Such proactive planning can also help avoid expensive and lengthy potential court challenges.