You may have seen the prominent news story regarding Heather Ilott and her successful Court of Appeal judgement. If not the full details can be read here.
The key theme behind this case remains, as always, to ensure that clients receive professional advice when making a Will, that the Will is revisited regularly and that the Will is structured and produced with their priorities in mind.
In the case of Mrs Ilott, who claimed against her mother, Melita Jackson’s, Will there are several specific factors that bear mention.
Despite the ruling, which would seem to make it easier for disinherited children to appeal against the estate, it is still wholly possible to disinherit children.
The key is being clear as to the reasons why you plan to disinherit. Pavilion Row, for example, automatically include a ‘letter of explanation’ detailing this in such cases. Whatever the approach, it is important to realise that the client’s children’s own particular circumstances will be examined, as will the client’s link with the Will’s beneficiaries. In this case Mrs Ilott was receiving state benefits, so additional funds were seen as particularly beneficial. Mrs Jackson, meanwhile, chose charities as beneficiaries but a previous link between Mrs Jackson and said charities could not be shown. The gift to the charities was therefore seen as being done out of spite.
These two elements, the disinherited child’s circumstances and the link to the new beneficiaries were seen as key factors, as the judge ruled in favour of Mrs Ilott.
Although the ruling is likely to encourage appeals by disinherited children, and potentially give them a greater chance of success, we still believe that testamentary freedom remains and in most cases, where children are being excluded we tend to find clients wish to miss a generation and pass to grandchildren instead. As always, the advice needs to start with the client intentions and go from there and, as mentioned, an up to date Will together with a “letter of explanation” providing full details of the reasoning along with our own detailed file notes. All of these would come into play if the Will was contested. Proper, qualified advice is a must.
There will be further commentary and analysis of this case over the coming days and beyond and we will keep you updated on any further insight we think could have an impact in the future.