Laura Johnson – solicitor in the Private Client team – asks whether a Court can ignore your Will.

A general principle of English Law has always been that you are free to leave your assets to whomever you wish via a Will. This included disinheriting your children should you choose to do so.  However, there are some circumstances where a claim can be made against your estate by your child if they think that they should have been provided for by your Will. It used to be the case that a disinherited child had to show financial dependency on the deceased person in order to make a claim against the estate.  This is no longer the case.

The case of Ilott v Mitson involved the estate of Mrs Jackson who died in 2004.  Mrs Jackson only had one daughter and they had not had contact or a real relationship since the late 1970s when Mrs Ilott eloped with her future husband. Mrs Jackson never forgave her for this and attempts at reconciliation failed. Mrs Jackson prepared her Will in 2002 and left her entire estate of around £500,000 to three animal charities. Mrs Jackson wrote a letter of wishes at the time of drafting her Will explaining that she did not want her daughter to inherit anything. Previously the Court of Appeal decided that it was unfair for none of Mrs Jackson’s estate to pass to her daughter and Mrs Ilott was awarded £50,000. However, Mrs Ilott challenged the amount and at the hearing yesterday the Court of Appeal has awarded Mrs Ilott £164,000, (being one third of her mother’s estate).

In this case, the Court has decided that it was simply “unfair and unjust” of Mrs Jackson not to leave anything to her daughter despite clearly setting out her intentions in a letter of wishes. The Court took the view that Mrs Jackson had acted “capriciously and maliciously” and they decided it was unfair for Mrs Ilott not to inherit.

The court considered it relevant that although the letter of wishes explained why she was disinheriting her daughter it gave no mention of why she had chosen to leave her estate to the three charities. It would have been harder for Mrs Ilott to bring a successful claim if the letter of wishes had explained why Mrs Jackson had chosen the specific animal charities and what connection she had to them.

This case makes it very clear that when a person wishes to disinherit a child, it is vital to leave a separate detailed letter of wishes. We would always suggest that you do this anyway in such circumstances, but this case suggests that you must go further to explain the reason why you have chosen the other person or charity to benefit instead.

There are many reasons why you may not want to leave your assets to your children, or why you might prefer to leave unequal shares to your children. For example, you may have become estranged from your children or you may have given more money to one child during your lifetime. You may also feel that your children have sufficient assets and wealth of their own and it would be better for your assets to pass to your grandchildren, other relatives or charities.  There is still a chance that a disinherited child could make a claim against your estate, but a letter of wishes explaining the reasons for leaving out your child and also selecting the alternative beneficiary would help to defend such a claim.

This case is a reminder of how important it is to make sure there is a separate letter of wishes explaining the reasons for leaving your estate in the way that you have, especially when you have not included (or left less) to one or more of your children. A letter of wishes can be as personal as you wish and it can be amended or updated at any time without going through the formal process of updating a Will. For more information about the circumstances in which claims such as these can be made please see our recent article.

If you would like us to review your Will or letter of wishes in light of this case then please do contact me or one of my colleagues.

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