Nearest but not necessarily the dearest: disinheriting children post Ilott

6 August 2015

The Ilott case has caused a fair degree of furore in the UK press recently. Testamentary freedom in England is sacrosanct in many English citizens’ minds but has the recent Court of Appeal ruling (Ilott v Mitson [2015] EWCA Civ 797) undermined that freedom? And if so, how can anyone ensure that their Will is upheld and respected after death?

Mrs Melita Jackson took a dim view of her only child, Heather Ilott, who eloped in 1978 to live with the man whom she would later marry and with whom she had five children. Mrs Jackson and Heather were estranged and when Mrs Jackson made her last Will in April 2002 and then died in 2004, she left all of her £486,000 estate to three charities and deliberately left nothing to Heather.

In this appeal, Mrs Ilott was awarded £163,000 from her mother’s estate: £143,000 to allow her to buy her house from her housing association, to relieve Heather of the need to pay rent, and £20,000 ‘from which further income needs can be met’ without upsetting her right to means tested welfare benefits.

It is a myth that English law allows absolute testamentary freedom. The Inheritance (Provision for Family and Dependants) Act 1975 entitles certain categories of people, including children (of any age), to receive reasonable financial provision. In the case of children, it is reasonable financial provision for their maintenance. Already therefore, an element of subjectivity is introduced – what is reasonable for this particular child’s maintenance? Heather was living in a housing association house and her financial resources were minimal. Her maintenance needs were more than most children’s. The warning bells should have been ringing but perhaps, due to their estrangement, Mrs Jackson had no idea.

In my view, the decision can be described as one that turned on its facts. Notwithstanding the Ilott case, adult children, particularly if they are financially independent, will struggle to bring a successful claim. However, because their chances are influenced by so many factors, including who the other contenders to the estate are and their needs and existing resources, it is impossible to discount the risk entirely. So while this case may not have changed the law, it has shifted perceptions. It will inevitably give succour to adult children disappointed with their inheritance. So what can be done? English law is unclear as to whether a beneficiary forfeiture clause can be included in a Will to deter any challenge to it after death occurs. Challenges, even futile ones, all cost the estate money – time spent by the executors and their advisers dealing with these issues is a cost that is born by the estate and ultimately by the rightful beneficiaries, whoever they may turn out to be.

If you know anyone in this situation, how should you advise them (short of telling them to spend it all)? The first thing to do is recognise that they might not even be aware that their wish to disinherit merits special treatment. The outcome for Mrs Jackson’s estate began to look bleak because of the things that she didn’t do in her lifetime. No doubt if she knew that her actions would make such a difference, she would have done things differently. She didn’t cultivate any links with the charities that she wanted to benefit – this seems to have counted against her estate in court and so is something that should be avoided. She didn’t give enough of an explanation as to why she was disinheriting her only child in her Will documents – another missed opportunity. Disinheriting those whom, objectively, you might be expected to provide for, is a high risk activity – this is not the time for a homemade Will and no professional advice. A carefully thought through Will, made with the help of a professional adviser, has a value all of its own if challenges arise after death.

The ultimate solution? Move abroad and lose your UK domicile. Although the Government was thinking of altering the law in this respect, the 1975 Act currently only applies to the estates of UK domiciliaries. Just look out for those foreign forced heirship rules.

Helena Luckhurst Author
Helena Luckhurst
About the author