Court overrides Will in favour of estranged daughter

The case that has raised the eyebrows of private client lawyers this year is called Ilott v Mitson. It is said that anyone can leave their Estate to whomever they wish but does this latest case challenge the principle of testamentary freedom?

This case starts with the death of a lady called Mrs Jackson in July 2004. Mrs Jackson had made a Will in April 2002 which left her Estate to three charities, the Blue Cross Animals Welfare Society, the RSPB and the RSPCA. It is not clear why Mrs Jackson chose these particular charities as she had no connection with any of them. Neither did she have a particular interest in animals or birds.

What is clear is that Mrs Jackson wished to exclude her only child, Heather Illot, from her Will. Mrs Jackson did not mention Heather in her Will and wrote a letter of wishes in which she expressly stated that she wished to exclude her daughter.

The letter set out that Mrs Jackson's relationship with Heather had been strained. Heather had left home in the middle of the night aged 17 some 25 years ago to live with a man who later became her husband. Mrs Jackson said that she had "no moral or financial obligation" to her daughter and that Heather had not been "financially reliant" on her.

Despite Mrs Jackson's wishes the Court of Appeal agreed with the trial judge that provision should be made from Mrs Jackson's Estate for Heather. 

When Mrs Jackson made her wishes so clear, how could the Court then override her Will and order that Heather should benefit from her mother's Estate?

The law allows certain individuals, including children of any age and also cohabitees, spouses and dependants to claim against an Estate. The ground for them to make a claim is that the disposition of the deceased person's Estate does not make reasonable financial provision for them.

The Court has to consider various factors in order to decide whether reasonable financial provision has been made. In this case the District Judge considered:

1. The financial resources of Heather now and in the future. Heather did not work having chosen to be a full time mum. Her earning capacity was limited and her family lived mainly on state benefits. It was significant that Heather was of modest means.

2. The obligations and responsibilities that Mrs Jackson had towards Heather and each of the three charities. That Mrs Jackson had no connection with the charities meant that it was difficult to say that she owed any obligations to them.

3. The size of the Estate which was some £480,000.

4. Any other matters, including Heather and Mrs Jackson's conduct. The Court considered that Mrs Jackson's conduct was unreasonable in rejecting her daughter at the age of 17 and since that time.

The Court of Appeal found that the district judge had considered the right issues and was entitled to make a value judgement based on them. In the circumstances Mrs Jackson had not made reasonable financial provision for her daughter. The case has now been referred back to the High Court to decide the amount that should be awarded to Heather.

It may be considered that the outcome of this case makes uneasy reading - "Court overrides Will in favour of estranged daughter" is the easy headline. However, once the cocktail of facts are considered it does not represent a significant threat to people's freedom to dispose of their Estate as they wish. Cases like this are always very fact specific. In this particular case a unique set of circumstances led to what can be seen as an unusual decision.

Even so, this case should be taken as a stark warning that if you wish to do anything out of the ordinary it is even more important than usual to obtain specialist legal advice. There are mechanisms which could have been put in place to reduce the likelihood of Heather's claim being successful. Mrs Jackson could have left her Estate to individuals or charities with whom she had a connection. She should then have emphasised this connection in her letter of wishes. The Court might then have been less likely to rule in Heather's favour.  

Equally if you consider that the provision or lack of provision that has been made for you in a Will is unreasonable it may be worth seeking specialist advice to see if you have a claim. Such advice should be obtained promptly as strict time limits apply to these types of claims. Ultimately the legislation which Heather used to bring her claim is intended to prevent people from unreasonably or sometimes inadvertently, excluding their nearest and dearest from benefitting when they die.

Tony Cockayne is Partner and Head of Disputed Wills & Trusts at Michelmores. For further information on the issues raised in this article, please contact Tony at tony.cockayne@michelmores.com or on 01392 688688

Author: Tony Cockayne

Category: Private Client

Last updated: 2011-07-05 14:37:59

Disclaimer: This information has been prepared by Michelmores LLP as a general guide only and does not constitute legal advice on any specific matter and should not be relied upon as such. We recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of this information.

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