Published 07th March 2016 | OM&M News

Can your Will be ignored?

A recent Court of Appeal case concerning a Will has attracted a lot of media attention. One newspaper headline declared “Your Will can be ignored!” but it is not quite that simple.

A lady called Melita Jackson had one daughter, Heather Ilott, from whom she had been estranged for many years. Melita was adamant that when she died, her daughter should not receive any inheritance and so when Melita wrote her Will, she chose three charities that she wanted to benefit instead.

In general, an adult is free to leave their estate to whomever they choose. A 1975 Act of Parliament, however, allows certain people to make a claim in Court if they disagree with the inheritance they have been left. The rules are complicated but normally, up until now, the rule has always been that a child who is now an adult, who is financially independent, and who can work, would struggle to succeed in a claim.

Heather used the 1975 Act to challenge her mother’s Will. She is on a very low income primarily made up of means tested benefits, however she is an adult and had been financially independent of her mother for many years prior to her death, therefore we would have expected her claim to fail.

Indeed, the case has been through many appeals with Heather being dissatisfied with the result initially achieved. The most recent appeal has been decided in her favour and has awarded her a sum of roughly 1/3rd of the total estate. The rationale behind the decision is that she is in financial need and that her deceased mother had no links with the charities she had chosen to benefit. The Judge stated that the charities had no need or expectation of inheritance because Melita had no links with them, and this outweighed the fact that Heather had no financial links with her mother prior to her death.

This decision has caused some alarm in the legal profession and for charities, who rely on legacy income to maintain their work. It is possible for the charities to appeal the latest decision, and we will update you on this in a future newsletter if an appeal does go ahead.

So what can you do if you want to make sure that a certain person doesn’t receive anything when you die?

  1. Make sure you have a Will professionally drawn up for you – a homemade Will might be cheap but it cannot advise you!
  2. Choose charities that you have links with, i.e. by making a regular donation or being a member of the charities you select.
  3. Make a clear note of the reasons why you are excluding potential claimants.
  4. Ensure that you do not confuse matters by providing for someone while you are alive and then excluding them after your death, or promising something to someone and then later changing your mind.
  5. Above all, take professional legal advice and make sure you regularly update your Will.
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