Contentious Probate – Challenging a Will

Mother leaves estranged daughter out of her Will.

Inheritance (Provision for Family and Dependants) Act 1975.

Challenging a will – The case of Ilott v Mitson & Others (2015).

You can leave your property in your Will to whoever you want, however, if you intend to exclude a dependant such as a spouse, former spouse or child from inheriting under your Will then the estate may face a claim from the aggrieved party.

Under the Inheritance (Provision for Family and Dependants) Act 1975 a number of classes of claimant can make a claim on the basis that the Will fails to make reasonable financial provision for them.

The Inheritance Act specifies who is entitled to bring a claim. You can only bring a claim if your relationship to the deceased falls within one of these categories:

  1. A spouse or civil partner.
  2. A former spouse or civil partner who has not re-married or formed a new civil partnership.
  3. A person who has lived with the deceased as the spouse or civil partner of the deceased for at least two years before their death, this includes same sex relationships.
  4. A child of the deceased; this includes adopted children and adult children A step-child of the deceased, if they have been treated as a child.
  5. Any person who at the time of death was financially maintained, whether wholly or partly, by the deceased.

In the case of Ilott v Mitson – The Court of Appeal awarded an estranged daughter the sum of £164,000.00 out of her estate. Ilott never met her father and was born two months after he was killed in an industrial accident. The mother benefited from her husband’s compensation. Mother and daughter fell out when she ran away with her boyfriend, who remains her partner.

The key to this claim was twofold:

  1. Ilott’s personal financial circumstances. Illott lived in poverty. There was an annual household income of under £7,000.00 and benefits of around £13,000.00, and also,
  2. The mother had no real connection with the charities to whom she left her estate in her Will.

The Court of Appeal felt that Mrs Jackson, the mother, had acted unreasonably and harshly towards her daughter and accordingly, increased the award to £164,000.00 from an estate worth around £500,000.00.

Some practitioners and columnists in papers have said that the Court of Appeal decision is unfair – it should be up to the individual who is to benefit from their estate, while other practitioners believe that it was a sensible and reasonable decision.

It is still good law to say that a non – dependant child who is financially secure will still have difficulty in supporting and maintaining a claim.

The factors the Court will consider.

The facts of each case are different and the Court will test the evidence and will want to know in detail the particular circumstances of the case. Section 3 of the Act sets out a number of factors which the court must take into account:

These are:

(1)     the size of the net estate;
(2)     the financial needs and resources of the applicant, or which the applicant is likely to have in the foreseeable future;
(3)     the financial needs and resources of the beneficiaries of the estate, or which such beneficiaries are likely to have in the foreseeable future;
(4)      the financial needs and resources of any other applicant under the Act;
(5)      the obligations and responsibilities owed by the testator to any applicant under the Act or to any beneficiary of the estate;
(6)     any physical or mental disability of any applicant for an order or any beneficiary; and
(7)     any other matter which the court may consider relevant, including the conduct of the applicant or the testator.

Conclusion.

Current legal thinking seems to suggest that if you intend to exclude a dependent person from your Will, you have good reasons to do so, and you have a close connection to the beneficiaries who you want to benefit then you should be able to defend a claim.

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