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Judge’s Comments Mean Wills ‘Must Be Robust’ - Harrowells

A Supreme Court judge’s comments this week (March 15) about shortcomings in legislation where adult children contest wills means parents must be “comprehensive, detailed and clear” in bequests, a wills, probate and trust specialist warns.

The statement by Lady Hale after the Supreme Court upheld a case brought by three charities against Heather Ilott, from Great Munden, Hertfordshire, who was cut out of the will of her mother, Melita Jackson, said that there was an ‘unsatisfactory’ lack of guidance in the Inheritance (Provision for Family and Dependants) Act 1975 for deciding when a maintenance payment could be made.

The hearing in the landmark case was the first time that the 1975 act had been considered by the Supreme Court and a partner at Harrowells Solicitors, York, Ed Ryder, said the judge’s statement that the current law is unclear could lead to more wills being contested on maintenance grounds in the absence of detailed notes of the reasoning behind the will.

Mrs Jackson, who died in 2004, rejected her daughter, Heather Ilott, because she disapproved of her boyfriend, Nicholas Ilott, who she left home to live with, aged 17 in 1978. They later married and have five children.

Mrs Jackson did not leave her daughter a penny and bequeathed her £486,000 estate to The Blue Cross, Royal Society for the Protection of Birds (RSPB) and the Royal Society for the Prevention of Cruelty to Animals (RSPCA), with which she had no connection.

In a letter to her lawyers, Mrs Jackson said: “I have made it clear to my daughter… that she can expect no inheritance from me when I die.” She instructed her executors to fight any claim Mrs Ilott might make after her death.

In 2007 Heather Ilot, who had no pension and was living on state benefits, was initially awarded £50,000 as ‘maintenance’ by a district judge in 2007.

The sum was increased by the appeal court to £140,000 in 2015 to buy her housing association property with another £20,000 structured to allow Mrs Ilott to keep her state benefits as she otherwise faced a life of poverty, unable to afford holidays or buy her children clothes.

The charities challenged the Appeal Court award, arguing that people should be free to choose their beneficiaries. The Supreme Court agreed that Mrs Ilott should receive only the original amount in spite of her financial circumstances.

In a statement within the judgment, Lady Hale said that the Inheritance (Provision for Family and Dependants) Act 1975, was ‘unsatisfactory’ in not providing guidance on what should be considered when deciding if an adult child deserves reasonable maintenance or not.

Ed Ryder said: “The number of contested wills is soaring. Whilst highlighting the significance of testamentary freedom, the judgment does make it clear that adult children can still claim against their parents’ estate, even if excluded by the will. However the courts have a range of options in dealing with such claims.

“If there is a vagueness in the legislation, there cannot be in wills which must be comprehensive, detailed and clear. Those making wills and their advisers must ensure that there are detailed accompanying notes explaining the reasoning and logic behind decisions as these are crucial when wills are contested.

“In the light of Lady Hale’s comments, those making wills also need to consider why their beneficiaries are deserving or undeserving of receiving benefit from their will. Too many people are exposing their wills to costly and time-consuming legal challenges by using will writing services not run by specialist lawyers. Generally they do not contain robust notes and will leave many estates vulnerable to being contested in the years to come.”

Harrowells Solicitors offers a wide range of legal services to commercial, farming and private clients. The firm has three offices in York and others in Pocklington, Easingwold and Thirsk.

This was posted in Bdaily's Members' News section by Mike Clarke .