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In pursuit of testamentary freedom In pursuit of testamentary freedom

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Apr 17

In pursuit of testamentary freedom

Written by Katie Watts

DDI: 01423 724624
E: katie.watts@raworths.co.uk

It is generally acknowledged that by writing a Will you are ensuring that your wishes will be respected following your death, however this isn’t always the case. Following a decade of litigation, the Supreme Court has now provided the final judgment in the high-profile case of Ilott v Mitson, which saw a daughter, Heather Ilott, fiercely contesting the wishes of her mother’s will.

The case received a significant amount of attention, primarily as it curtailed testamentary freedom. Testamentary freedom, a principle enshrined in English law, means an individual can leave assets in a Will to whomever they wish – and leave out those who might expect to inherit. However, if one of the excluded parties is a spouse, child or dependant, it is possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) as in the Ilott v Mitson case.

Melita Jackson died in 2004 estranged from her daughter Heather Ilott. Mrs Jackson had excluded her daughter from her Will and instead left the majority of her £486,000 estate to three charities. Heather, who lived off benefits with her husband and five children, made an application under the 1975 Act for reasonable financial provision from her mother’s estate. This led to several court hearings and judgments between 2007 and 2017:

2007 The district judge made an award in Heather’s favour of £50,000 from the estate.

This judgment was appealed by Heather as she did not think it was enough, it was counter-appealed by the charities who wanted the judgment overturned.

2011 The Court of Appeal overturned the judgment ruling in the charities’ favour, so Heather received nothing.
2013 Heather appealed again and the judge reinstated the original £50,000 award.
2015 Heather appealed again as she did not think the award was enough. The Court of Appeal set aside the original award and made an award to Heather of £143,000 to enable her to purchase her housing association house, the reasonable costs of purchase and the option to receive further payments of up to a maximum of £20,000 in instalments.
2016 The charities appealed to the Supreme Court and the case was heard in December.
2017 The Supreme Court gave its judgment on 15 March allowing the charities’ appeal and reinstating the original award of £50,000.

What we have learnt from this case and the Supreme Court judgment is that the wishes of the deceased should be given considerable weight. In addition, awards should be limited to ‘maintenance’ and not whatever the claimant says they need.

However, as the various judgments in Ilott v Mitson demonstrate, it is not possible to predict what the court may rule when a 1975 Act claim is brought.

So how do you cut out your spouse, children or other dependants from your Will?

  • Seek legal advice
  • Make your wishes extremely clear – either in your Will or an accompanying letter of wishes
  • Consider carefully who you want to benefit and how you want to benefit them, for example there are various ways to structure your Will to safeguard your assets for the next generation.

If this case raises any concerns for you then call any one of our dedicated Trusts, Wills and Estates team members to discuss.

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