Is there any point in making a Will?
In the United Kingdom today, many people still do not have a Will. This is for a variety of reasons, including time and effort required, cost (less than you think) and the thought of dying. However, recently another reason has been added to the list. Following the Court of Appeal ruling in a case brought by Heather Ilott for a share of her late Mother’s estate, many people consider that there is now little point in making a Will. Are they correct?
The Facts:
Heather Ilott is the daughter of Melita Jackson. Heather was the only child of Melita. When she was seventeen, Heather packed her bags and crept out of her Mother’s home, with whom she lived, in the early hours of the morning. She had given her Mother no warning of her intentions and left no note or any indication of where she had gone. In fact, Heather left home to marry her boyfriend whom her Mother considered unsuitable. Melita was very distressed by the turn of events and had no contact with Heather for many years. Melita attempted to find Heather but failed. Subsequently, some contact did take place.
Melita prepared a Will in which she left all of her estate to be divided between three charities. She left Heather nothing. She also prepared a note in which she set out the reasons why she had left Heather nothing. It stated that Heather had treated her very badly and that she did not feel that she was under any obligation to make any provision for Heather. At the time of her death, Melita’s estate was worth approximately £500,000.00.
In contrast, Heather had an annual income of less than £7,000.00 and received state benefit of approximately £13,000.00 a year. She had never taken a holiday and had difficulty affording food for her five children. She could only afford old clothes.
The Law
Under the terms of the Inheritance (Provision for Family and Dependants) Act 1975, a child may bring a claim against their parent’s estate if they consider that the Will of that parent fails to make adequate provision for them. Heather argued that her Mother was under a moral obligation to make some provision for her from her estate because she was in poor financial circumstances and her Mother had no connection to the charities to whom she had left the money. Put simply, the Court of Appeal agreed. They have awarded Heather one third of her Mother’s estate – approximately £164,000.00. The award has been made on the basis that Melita acted in unreasonable, capricious and harsh way towards her child. The Court took into account the fact that Heather had very little money and was suffering financial hardship. The Court felt that in those circumstances, Melita was under a moral obligation to make some provision for her only child. The Court also considered that it was relevant that Melita had no connection to the charities to whom she had left her estate.
Analysis
Therefore, is there any point in making a Will? The simple answer is yes. Despite the Court’s decision in this case, there is no absolute obligation upon a parent to make provision in their Will for a child. Sadly, on many occasions, parents feel that their children are undeserving and wish to leave them nothing or a reduced amount. On other occasions, there are very sound financial reasons for not leaving children anything from the parent’s estate. Providing in all cases that the parent sets out very clearly in a side letter the reasons why they are not leaving money to their children, then there is every chance that the Will will not be challengeable. Heather succeeded because she was impecunious. Had she not been impecunious, it is far less likely that her case would have succeeded. However, parents of impecunious children need to take note of the Court’s decision because reality is that an attempt to completely disinherit an impecunious child is now likely to fail.
Melita Jackson’s Will was professionally prepared, as was the side note which accompanied it. No criticism has ever been made either by a Court or by other Lawyers of the solicitor who prepared the Will and side note. It is accepted that both documents were very professionally and competently prepared. Therefore, it is clear that even the best Wills can be subject to challenge.
The solution is to consider very carefully the means of your children before preparing a Will. Consider very carefully the reasons for leaving your children out of your Will and consult a solicitor. Listen to his or her advice and take it to heart. Your solicitor can advise you upon how best to draft your Will and upon the contents of any side note which need to go with your Will. The result will be Will drafted in terms as strong as they lawfully can be and less likely to be successfully challenged.
For more information email chrismathews@vslaw.co.uk