The decision last year in the Court of Appeal in the case of Ilott –v– Mitson received a lot of press coverage and led many people to question whether their own wills are watertight. This was the case where a mother specifically disinherited her only daughter and left the whole of her £500,000 estate to three animal charities with which she had little or no connection. The daughter sued and, after a ten year legal fight, was awarded £164,000 from her late mother’s estate.
The Court of Appeal decision may still be subject to an appeal to the Supreme Court.
Mrs Ilott’s claim was brought under the 1975 Inheritance (Provision for Family and Dependants) Act, a 40 year-old statute that was intended to help protect the close dependents of someone who has died. What this law brought into effect, and what the Ilott case has particularly highlighted, is that since 1975 in England and Wales your freedom to bequeath what you want to who you wish might be questionable. In Scotland, this has been the case for far longer.
However, it does not always follow that the courts will overturn a provision in a will that fails to leave money to a particular descendant. A properly drawn-up will that specifically disinherits a child will continue to be enforced unless the child can demonstrate pressing financial needs. Surviving spouses, on the other hand, will nearly always have a valid claim if they are disinherited or not left a reasonable provision.
The reasons why someone would want to disinherit their children are many and varied, but interestingly several high profile individuals – Sting, Lenny Henry, Nigella Lawson and Simon Cowell, among others – have recently said that they will not be passing on their fortunes to their children, with the main reason being that they want their children to make their own way in the world, and the prospect of inheriting their parents’ wealth is a disincentive to doing so.
There has been a significant increase in will disputes in recent years, and although every case is different it is not hard to see why. Firstly, families are a lot more complicated than they were forty or fifty years ago. Higher rates of divorce over recent decades has created second and third families where descendants cannot agree on how an estate should be divided. Secondly, the rise in home ownership and the surge in house prices has meant that even people who have always lived modestly may have something worth fighting over when they die. Add to this the fact that people are living longer and often experiencing years of mental decline and vulnerability and the potential for disputes is obvious.
Although the principle of freedom of testamentary disposition – the right to leave what you want and to whom – remains largely intact, the Ilott case is a reminder that there is no substitute for taking sound legal advice when it comes to drawing up your will.