Leaving your children out of the Will could be risky business

July 27, 2017

As tempting as it might be to act on those breakfast table threats to leave little Johnny out of your Will if he doesn’t clean his room, you may want to put a bit of thought in to how you might do that if relationships really do become estranged.

 

There has been a fair bit of press around celebrities like Elton John and Gordon Ramsey publicly declaring that they will not leave all their wealth to their children. It’s worth noting the word ‘ALL’ however. A beautiful tenet of English law is that you a free to leave your estate to whoever you wish.  The principles of inheritance are based on some very old laws and cases which are still relied upon to this day, and testamentary freedom, and the rationale that underpins it, were described in one of the classic statements on the subject in the very old English case of Banks v Goodfellow (1869-70) LR 5 QB 549, at 563, in the judgment of Cockburn C. J. who said: “The law of every civilised people concedes to the owner of property the right of determining by his will, either in whole or in part, to whom the effects which he leaves behind him shall pass …”

 

By contrast, other jurisdictions dictate alternative dispositions of property on death such as forced heirship under Sharia law in Islamic countries, or civil law jurisdictions in European countries such as Italy, Spain and France.  In some states in the US, statutory elective share exits to prevent disinheritance of a spouse, in some cases regardless of the length of the marriage. In other US states, community property rules apply meaning any assets acquired before the marriage are considered separate property.

 

So you see in England we are quite lucky in that we can do with our property what we choose. Where’s the catch you might ask? And you’d be well advised to ask. Firstly, there is the not so little matter of the Inheritance (Provision for Family and Dependants) Act 1975 (more commonly known as the ‘75 Act) which provides for, amongst others, children who were financially dependent on their parent prior to their death to claim for reasonable financial provision.

 

Now at the beginning of this article I talked about a very old case, but I feel it somewhat appropriate at this point to introduce the very recent case of Ilot v Mitson [2017] UKSC 17, which concerns an estranged adult daughter’s claim under the ‘75 Act. The facts of the case are irrelevant save that there had been a couple of attempts at reconciliation over the years but mother and daughter had been estranged for nearly a quarter of a century, and the mother stated clearly in a letter of wishes her reasons for excluding her daughter from her Will.

 

In excluding her daughter from any benefit under her Will, the mother choose to leave her estate, worth just under half a million pounds, to three animal charities with which she had no particular connection during her life. At the first instance case, Mrs Ilot was successfully awarded a sum of £50,000 for her claim of reasonable financial provision. She appealed that decision on the basis that it wasn’t enough and that it would deprive her of her means tested state benefits and that it wasn’t enough to buy the housing association property in which she lived with her family.

 

The Court of Appeal set aside that decision and awarded her £143,000 and an option to receive a further £20,000 in one or more instalments. This decision was then further appealed to the Supreme Court and some ten years after the first instance decision, the Supreme Court reinstated Mrs Ilot’s original award of £50,000.

 

The Court said that the Court of Appeal was wrong to interfere with the judge at first instance, and that the judge had made a value judgment based on the evidence in front of him and was perfectly entitled to come to the conclusion he did. On the issue of maintenance, the Supreme Court said that this should “…not extend to any and everything which it is desirable for the claimant to have…”

 

A key factor for the Supreme Court’s decision is that the test for reasonable financial provision under the ’75 Act is deliberately vague. For anyone other than a spouse, in this case a daughter, it means what is reasonable for their maintenance. It is enough therefore that any award removes them from living in poverty but does not extend to the claimant being able to live in luxury.

 

The Supreme Court’s decision in Ilot certainly preserves the principles of testamentary freedom, but should provoke further thought on whether a person making a Will remains free to exclude their children. At first glance the answer would be that they are, but the wise testator would be even wiser to consider the ‘75 Act before doing so.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Nino Cuffaro – Wills, Trust and Probate

E: nino.cuffaro@pennchambers.co.uk

T: 020 7183 1485

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