Independent adult child overturns Will

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20 July 2011

The Court of Appeal has ruled that the estranged daughter of a women who left most of her estate to charity can make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 ("1975 Act"). This is an important decision because whilst it was specific to its facts it goes against the previous flow of cases which suggested that it is very difficult for an adult child to win such a claim.

Heather Ilott brought her claim against her mother, Melita Jackson's estate. Following Mrs Jackson's death she left her entire estate, valued at £486,000, to animal charities The Blue Cross, RSPB and RSPCA.

Mrs Ilott became estranged from her mother in the 1970's when she eloped in the middle of the night to live with her boyfriend of whom her mother disapproved. Mrs Ilott became completely separated from her mother and apart from brief reconciliations they barely spoke before Mrs Jackson's death in 2004. Mrs Ilott has five children and lives mainly on benefits

When signing her Will in 2002 Mrs Jackson left with it a Letter of Wishes explaining why she had left out Mrs Ilott.

Mrs Ilott's claim was brought under the 1975 Act on the basis that her mother had failed to make reasonable financial provision for her. The case was originally heard in 2007 and the District Judge awarded her £50,000 seemingly on the basis that because Mrs Ilott had five children and was living on benefits, Mrs Jackson's Will was unreasonable in not making any provision for her. Mrs Ilott appealed this decision in the High Court  as she felt the award was too little and lost. The Court of Appeal has now ruled in favour of Mrs Ilott and has sent the case back to the High Court to re-evaluate the level of award Mrs Ilott should receive.

It is possible that the High Court will still award Mrs Ilott less than the original sum of £50,000, resulting in something of a hollow victory for her personally.

Should you be worried?

The consequences for Testators are that no matter the degree of separation or estrangement, parents cannot unreasonably exclude their children from benefitting under their Wills.

Even where clear reasons are provided for a child's exclusion the Court may be prepared to step in and amend the terms of the Will. Even though the charities criticised the decision on the basis that it removes the right to testamentary freedom, the Court remarked that the intention of the 1975 Act was to enable an adult child to make a claim where they have been omitted from their parent's Will "even if it was possible for him or her to subsist without making a claim on the estate".

So now when drafting or reviewing their Will the Testator should have regard to provision for their adult children, regardless of circumstance. They should also be aware that the Court may intervene and amend the terms of that Will even if clear reasons are given as to why a child has been left out.

For more information, please contact Tom Hewitt on +44 (0)117 902 2717 or email tom.hewitt@burges-salmon.com

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