Is there such a thing as testamentary freedom in England and Wales anymore?

Concerns have been raised as to whether people can still disinherit their children following a recent case where the Court of Appeal ruled that the estranged daughter of a woman who left most of her estate to charity could make a claim against her late mothers estate, under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975).

Mrs Jackson died in 2004 aged 70, having left a Will in April 2002 giving her £486,000 estate completely to charity. Mrs Jackson had one daughter, who she specifically excluded. Her daughter, Mrs Ilott had left home at 17 years of age, asking her mother to refrain from contacting her and had spoken with her mother only twice since then. Mrs Jackson left a letter to her executors explaining her reason for excluding her daughter from her Will, but despite this the Court decided that her daughter would now receive some provision.

In Scotland they have ‘forced heirship’ as they do in many European Countries. In England and Wales however the only way forward for a disinherited child or dependant to get an inheritance is through the IPFDA 1975, as the main aim of this Act is to allow people within certain categories who feel that insufficient provision has been made for them under a Will or intestacy, to make a claim for provision from the estate. Historically adult children generally got short shrift from the court unless they could make out some sort of proprietary claim or establish some weighty moral obligation upon the deceased to make provision for them.

However, Mrs Ilott’s legal team successfully maneuvered their way around her statutory eligibility to make her claim. Mrs Ilott, a mother of five who lives on state benefits, applied for provision from the County Court and was awarded £50,000 from the estate. She appealed to the High Court for greater provision, however, her claim was dismissed completely. With the aid of a pro-bono barrister Mrs Ilott challenged the ruling to the Court of Appeal and was successful. The actual sum she will receive from the estate is still undecided. The Court specifically stated that Parliament through more recent legislation made it clear that they intended for an adult child to be able to bring a claim, even if they could live without financial provision from the estate and/or where there had been no such financial provision during the deceased’s lifetime. This case seems to focus on fairness towards the person left behind rather than the person who made the Will.

The decision indicates a general trend towards restricting more and more a person’s freedom to do as they desire with their estate and is likely to lead to a significant increase in the number of claims brought by adult children under the IPFDA 1975. However before you all think ‘well why bother to make a Will’ until or unless legislation changes decisions will always be on a case by case basis. Remember the rules of intestacy leave no room to disinherit children, so it is still better to make a Will than not and to leave a comprehensive letter of wishes as to why.

For more information on this and any other issues please contact Mrs Angela Pelleschi or Mrs Emma Beckhurst at Jasper Vincent Solicitors, 9 Manor Court, Barnes Wallis Road, Segensworth, Fareham PO15 5TH : Telephone 01489 885788 or email either on apelleschi@jaspervincent.com or ebeckhurst@jaspervincent.com.