A Court of Appeal ruling this week has highlighted the powers at the disposal of the courts over wills, Stephen Oliver has said, in a decision that may have repercussions on how such advice is delivered.
Commenting on the ruling, that overturned a mother’s wish to cut her daughter out of her will, the director of Northampton-based the Will Company, said people should continue to make a will as they have always done but if intent in disinheriting a dependent they must emphatically make the case for this.
“The courts have always had the power to overrule or ignore a will if they deem it unreasonable. It is stipulated in the Inheritance Family and Dependants Act 1975. If for example you have multiple children and leave an inheritance to only two and not the third, the courts can overrule this,” he said.
He said the ruling was a twist of the original intention of the act, normally used for young children who are left out of wills.
After a decade-long fight, the Court of Appeal ruled last week that Heather Ilott should receive a third of her mother’s estate, and was awarded with a £164,000 inheritance by the court.
Ms Ilott had challenged her mother’s decision to cut her out of her will. Melita Jackson died in 2004 and left her £486,000-estate to three animal charities.
Mr Oliver said that the ruling meant that people would have to explain their reasons for disinheriting a dependent, and demonstrate a realistic connection to the entity they left money or assets to – in this case the animal charities.
“Ms Jackson needed to show a connection to the charities – was she a volunteer, on a committee, or donated over the years? And it should have been well documented why the daughter was not a beneficiary, especially with an estate of that size.”
The other issue was that the mother was insufficiently advised when she made her will, which highlights the importance of advice in this area.
Emma Myers, head of Wills, probate and lifetime planning for Saga Legal Services, said: “Anyone concerned about their current arrangements should seek the advice of a legal provider who will be able to review their Will to stress-test it.
“Although it is impossible to completely prevent people from making a claim in due course, they can ensure that they take all necessary steps to successfully defend such claims.”
Gary Rycroft, a member of the Law Society’s wills and equity committee, said: “This ruling is saying that while you can still disinherit your children, you are going to have to explain why and show connections with those you are leaving the money to.
“It is also very important because it seems to be making it easier for adult children to claim for reasonable financial provision in wills and has made the gap wider for them to do that.”
Jonathan Smithers, president of the Law Society, said: “The law makes it clear that the courts have the power to amend wills to provide for dependents who might otherwise be destitute. Writing wills is becoming increasingly complex and it is not always possible to predict what the courts will decide, particularly in difficult family cases. This should not put people off from making wills.”