Articles

  • September 2015
    Where there's a will there isn't always a way


    Cases involving wills seldom make headlines, but the recent case of Ilott v Mitson is the exception.

    Many European countries have forced heirship provisions whereby you have to leave a proportion of your estate to family members.  In England there is no such obligation, and we are proud of our testamentary freedom.

    What changed?

    The Inheritance (Provision for Family and Dependants) Act 1975 enabled persons supported financially by the deceased, to successfully challenge their will where the court agreed that the will contained insufficient provision, taking into account the needs of all dependant parties.

    Ilott V Mitson is remarkable because the deceased mother had not financially maintained Mrs Ilott, a married woman with her own family, with no expectation of inheriting (her mother wrote letters telling her she wouldn’t get a penny).

    The Court of Appeal decided Mrs Ilott should receive £163,000 – roughly 1/3rd of the estate (allowing her to buy her home), ruling that the mother need not owe any moral duty to maintain the daughter: it was enough that the daughter was poor and her mother well off.  Mrs Ilott’s successful challenge did not adversely affect the interests of other dependants as the beneficiaries were charities.  The estate was partly funded by “death in service” benefits paid when Mrs Ilott’s father died prior to her birth, although the court stated this was not relevant.

    This case may be appealed to the Supreme Court, and overturned, or looked at as an anomaly in the future. Time will tell.

    It is still important that people make wills.  Mrs Ilott would have inherited everything and the charities nothing, if her mother had not done so. Most importantly people should take legal advice where family members have conflicting claims for financial provision. It is possible, for example, to provide for a new spouse without disinheriting your children.

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