In these days of ever complex family relationships, sometimes the Testator asks us to advise whether he or she can leave an estranged child out of their Will.

The answer prior to the much published Illott v Mitson case in July last year was normally, yes. The Testator has freedom under English and Welsh law to leave his assets to whoever he likes. The only exception is if he or she is maintaining a person during his or her lifetime. By omitting that person from his or her Will, that disappointed beneficiary could sue for reasonable provision to be made for them. However, if a disappointed beneficiary was an adult child capable of earning their own living, then it was unlikely that their application would be successful as the Testator does not have a duty to support that child. Has Illott v Mitson changed the position?

In the case Mrs Jackson died aged 70 leaving her £485,000 estate to various animal charities. Mrs Jackson disinherited her daughter, who had left home in her teens to live with and then marry a man Mrs Jackson did not approve of. At the time of the case, the daughter was still married and had five children. She and her husband were living in modest circumstances and the daughter claimed sufficient monies from Mrs Jackson’s estate to buy her a house. The case was heard three times before it reached the Court of Appeal in July 2015 when the daughter was awarded £143,000 to buy a house plus £20,000 cash.

Much of the commentary talks of the daughter’s necessitous circumstances (a factor normally carrying little weight in earlier cases), the fact that Mrs Jackson did not support or have animals during her lifetime and Mrs Jackson’s perverseness in never acknowledging her daughter’s choice of husband. There had been attempts at reconciliation which had all failed so the daughter had little expectation of receiving anything from her mother’s estate.

The Court of Appeal’s decision in July found that the Judge who had previously heard the case had been wrong to limit the daughter’s award just because she did not expect anything from her mother. Instead, the Judge should have applied the factors in the Inheritance (Provision for Family and Dependants Act) 1975 which need to be considered to establish what reasonable provision should be made. Also, the Judge failed to consider the effect of any award on the means tested benefits which the daughter received.

The case is cited by the commentators as diluting the freedom of testamentary expression but although in the final decision, the daughter was awarded sufficient monies to buy a house, the Court applied the Inheritance (Provision for Family and Dependants) Act factors correctly. The Court was not seeking to improve the daughter’s standard of living. Therefore, despite the media hype the case attracted, it has not really changed the law but is instructive as to how the factors in the Inheritance (Provision for Family and Dependants) Act 1975 should be applied.

In the Court of Appeal judgment in July, the Judges balanced Mrs Jackson’s testamentary wishes with their statutory power to ensure that reasonable financial provision was made for maintenance only. The Court therefore affirmed our understanding of the law, rather than changed it. It is to be remembered in the case that the estate was left to charities who had no expectation to benefit from Mrs Jackson’s Will.

If you do have difficult family circumstances, then it is possible still to exclude independent adult children but we would recommend that you leave a letter with an explanation as to the reasons why the child was excluded and why the beneficiaries of the Will were chosen. The reason for this is that the Court can take such a letter into account in applying the factors in the Inheritance (Provision for Family and Dependants) Act, if a claim is ever made to challenge your Will.

If you wish to discuss this blog post further, please do not hesitate to contact Amanda Simmonds.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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