English law has long firmly enshrined the principle of ‘testamentary freedom’: the right to leave your property to anyone you choose, without being obliged to leave a share to your family (unlike the ‘forced heirship’ that applies in much of continental Europe). That said, for some time it has been possible for certain individuals to make a claim against an estate if they have been excluded by the Will, or if they feel that what they have received does not make adequate provision for them. The most recent legislation under which such claims are made is the Inheritance (Provision for Family and Dependants) Act 1975.
A recent decision by the Court of Appeal, Ilott v Mitson, was a striking instance of an adult child making a claim under the Act. In that case, a mother had left all her money to various animal charities. Heather Ilott, her only child, from whom she had been estranged for many years, received nothing.
The mother had gone to great lengths to try to avoid a claim being made by her daughter. She told her daughter that she would not receive anything, and she also set out very clearly (though slightly inaccurately) why she did not wish Heather to inherit. The benefit to the animal charities was, however, unexplained: she had no particular love for animals and had not given to the charities during her lifetime.
Heather’s financial position was not healthy. She was married with five children and living on state benefits. She made a claim under the Act and a judge awarded her £50,000, from a total estate of rather less than £500,000. Heather’s claim was upheld by the Court of Appeal.
Whilst this case was decided on the specific facts, it reinforces the possibility of a successful claim under the Act by an adult child, even though that child has not relied financially on their parent for many years.
A parent who is considering making a minimal or no gift to one or more of their children in their Will needs to proceed carefully and take advice about how the risks of a claim can be reduced.
One of the saddest lessons from Ilott v Mitson emerges when one looks at the size of the figure that is being argued about: should Heather get more or less than £50,000 out of a £500,000 estate? By the time the parties have finished arguing there will be precious little left for anyone. Families do not have to be as dysfunctional as the one in Ilott v Mitson for disputes to break out after a death and often, when provision in a Will is unequal or unexpected, the basis of the problem is less ‘how much?’ than ‘did I matter less than the others?’. In the long run it is worth having spent time and care, when making the Will, to anticipate and deflect potential problems.