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Is it worth making a will?

View profile for Alison Short
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In a landmark case in the Court of Appeal, estranged daughter Heather IIott successfully challenged her mother’s will raising the question, is it worth making a will?

Melita Jackson left her estate, worth nearly £500,000, to three charities: The Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals.

Mrs Ilott defied her mother when she left home at the age of 17 to marry her boyfriend, (now husband), creating a lasting rift between the two that was never mended. So Mrs Jackson decided to disinherit her only child in her will going so far as to leave a letter instructing her executors to defend any claim she made.

After many, many years of judicial rulings and over-rulings, Mrs Ilott was recently awarded £164,000 from her mother’s £486,000 estate by the Court of Appeal.

In some places including Europe – and Scotland – by law you have to leave some of your assets to close family when you die. In England and Wales the position is different. We have what is known as testamentary freedom, provided you are well enough to make a will, you can make what gifts you wish.

However, there has been provision, most recently in 1975, for someone who should have been provided for in a will to make a claim. An adult child has a right to make a claim but what they are entitled to is reasonable provision for their maintenance, broadly speaking living expenses. The court works that out and may express an award as a lump sum rather than regular payments.

The law about this has developed. Few of us would quibble about an award to a young child or spouse who has been inadequately provided for. However, over the years the courts have pushed the boundaries for adult children, from benefiting dependent children to benefiting children to whom there is some kind of ethical or moral obligation, to, as in this recent case, benefiting an adult child who had been living independently for all her adult life.

Has anything changed? No and yes. No, because the likelihood of such a claim succeeding and the amount of it has recently been very difficult to predict. Yes, because the court in this case gave the daughter a generous settlement because of her straitened financial circumstances, (the purchase price of a house so she would no longer have to pay rent plus a top up of £20,000), and was much more willing to interfere with the mother’s wishes. All the same the court did comment on the daughter’s resources being at such a basic level that they, ‘outweigh the importance that would normally be attached to the fact that she is an adult child who had been living independently for so many years’.

How does this affect you?
The case for making a will remains the same. It is still the best way there is to direct who benefits after your death and explain your reasons. In straightforward happy family situations there is nothing to worry about. However, in some circumstances, for example where you wish to leave everything to your partner and not your relatives, you need to be more careful than ever.

Firstly it must be made clear beyond doubt that you are well enough to make a will and, if needs be, a medical report should be obtained to confirm that. Secondly you need a thoughtful and detailed review of your financial position and family circumstances past and present so the will you make is balanced taking everything into account. If you are doing anything likely to be unexpected or unwelcome, your reasons for including and excluding people should be sensible and clearly recorded. It is always advisable to make your will through a solicitor experienced in this kind of work.

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