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28 July 2015 0 Comments
Posted in Private Client

Can your Will be ignored?

Author headshot image Posted by , Senior Associate

In the much publicised latest court decision in Ilott v Mitson, it has been suggested that the ruling will seriously impact the ability of individuals to leave property in their Wills. However, is this truly the case? And was the decision that unreasonable?

Sponge cake

A mother who didn’t want her daughter to inherit anything

Mrs Ilott brought the case after her estranged mother, Mrs Jackson, decided that she did not want to leave her daughter any of her near £500,000 estate. Instead, Mrs Jackson left her estate to three well-known animal welfare charities.

On the face of it, many would question why an estranged daughter should be able to successfully make a claim in these circumstances. However, there are a variety of factors that the court will take into account. This case was no different.

Mrs Ilott put evidence before the court that she and her family were struggling to make a living on state benefits. The court also felt it was relevant that Mrs Jackson had no real connection to the charities, and the charities could not demonstrate the same level of financial need as Mrs Ilott. The court also felt it compelling that Mrs Ilott had allegedly tried to reconcile with her mother a few times, but the evidence suggested that Mrs Jackson’s disapproval of Mrs Ilott’s husband was the problem.

Taking all this into account, the court felt that it was unreasonable of Mrs Jackson to exclude her daughter from her Will and originally awarded her £50,000 from her mother’s estate. Following a further appeal by Mrs Ilott, yesterday the court increased this award to over £160,000, to enable Mrs Ilott to purchase her housing association property for her and her family. Her award equated to approximately one-third of the estate, with the remaining two-thirds passing to the charities.

What does the law say?

The case itself relates to a little known area of law called the Inheritance (Provision for Family and Dependants) Act 1975, a law which has been in place for around 40 years. What this law seeks to achieve is a ‘fair’ inheritance for certain individuals (often spouses and children), where the court does not feel that a person has received ‘reasonable financial provision’ from an estate.

The “landmark” ruling in this area was, perhaps, in the original decision in 2007, when it was held that the phrase “child”, also applied to adult children. Since that original decision nearly 8 years ago, the parties have been engaged in a continued dispute regarding whether Mrs Ilott’s award by the court was sufficient.

So should I still make a Will?

This simple answer is yes! Many counties in Europe (including France and Spain) have laws which automatically require certain assets to pass to a person’s nearest relatives, regardless of the contents of their Will. This is not the case in England and Wales, so it is always preferable to have a Will if you are to have any say over how your estate should pass after your death.

Also, as a result of this case, while you can still exclude someone from your Will, you may have to explain why and what connects you to those you do leave money to.

Even though it’s possible for certain excluded relatives (including adult children) to challenge your decision, the case of Ilott v Mitson shows that the court does not take such decisions lightly and will take various factors into account before it concludes that it might be fair to alter your wishes.

Read more on this case in the Telegraph and BBC articles.

Get in touch to find out how we can help with making a Will – making sure that both your assets and your wishes are protected.

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