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Can You Act Like King Lear and Disinherit your Children?

Recently there has been much in the papers concerning Mrs Ilott and her success in contesting her late mothers Will, which made no financial provision for her; with cries from the media that we can no longer have peace of mind as to who can benefit from our estate when we are gone. But what does it mean for you and me?

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To understand how this can affect us, the facts of the case need to be looked at. At first glance the case would seem to have come straight from the pages of Shakespeare, being reminiscent of his famous tragedy King Lear.

Disinherited after eloping

The daughter, Mrs Ilott had been disinherited by her mother Melita Jackson, following eloping with her now husband Nick Ilott when she was 17 year old, against her mother’s wishes. Mrs Jackson never forgave her daughter, and although attempts at reconciliation were made these failed, resulting in both mother and daughter being estranged from each other for some 26 years.

When Mrs Jackson died in June of 2004 leaving a net estate valued in the region of £486,000, her Will stated that her whole estate, subject to a gift of £5,000 in favour of the BBC Benevolent Fund, was to be divided equally between the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. The mother had made it clear during her lifetime that she would not leave her daughter anything in her Will, and had set this out in a written statement as well as in a letter to her daughter.

2007 – Challenged the Will

Mrs Ilott challenged the Will in 2007 under a right to “reasonable provision”, which is contained in the Inheritance (Provision for Family Dependants) Act 1975. This piece of legislation enables a person who has either been disinherited entirely or left unreasonable provision “to bring a claim against a person’s estate for greater financial provision”.

The hearing was heard by District Judge Million who, in his judgment, highlighted he was satisfied the rejection by the mother of her only child at the age of 17, which she maintained for the rest of her life, was unreasonable and that this led to the mother unreasonably excluding her daughter from any provision in her Will.

The Court awarded £50,000 to the daughter, the daughter then subsequently appealed the level of award on the grounds that it was insufficient, upon which the charities cross appealed on the grounds that the Judge had not properly applied the law, and if he had he would have concluded that no provision was reasonable.

At The Court of Appeal hearing it was directed that the level awarded, namely the £50,000, should be referred back to the High Court for consideration.

Mrs Justice Parker sitting at the High Court held that the award made by District Judge Million should not be increased.

2015 – Decision appealed at The Court of Appeal

Following the High Court ruling, Mrs Ilott again appealed the decision, this time at The Court of Appeal, where it was ruled Mrs Ilott would otherwise face a life of poverty because she was on benefits.

The fact that Mrs Jackson had little connection with the charities to which she left her money played a part in the Court of Appeal judge’s decision. Mrs Ilott’s initial award of £50,000 was increased to £164,000, with a further £20,000 to supplement her benefits.

What does this mean to you me?

Essentially it is saying you can still disinherit your children, but in doing so you are going to have to explain why and demonstrate connections with those you are leaving your money to.

But what is concerning, is that it seems to be making it easier for adult children to claim for reasonable financial provision under their parents wills.

Whatever Mrs Jackson’s intentions were, and however spiteful some may feel she was being, many parents who wish to disinherit a child or children will no doubt agree that their decision will not have been made lightly.

In the words of King Lear, “How sharper than a serpent’s tooth it is to have a thankless child.”

Giles Scott

Comment by Claire Vale

Claire Vale is a colleague of mine at Lanyon Bowdler, she is an associate solicitor and a contentious probate specialist.

Further to my blog above, Claire looks at it from her angle and comments as follows:

“The recent Court of Appeal decision in the case of Mrs Ilott is in line with the existing law, and it is not a radical departure from previously decided cases relating to claims by adult children. I have successfully acted in the past for several adult children who were estranged from their parents.”

The Inheritance (Provision for Family and Dependants) Act 1975

Claire explains “This Act talks about the right for, among others, a child of the deceased, such as Mrs Illott, to apply to the Court for an order if the Will of the deceased (or the intestacy rules), does not make reasonable financial provision for her.

Reasonable financial provision

“In the case of a child, “reasonable financial provision” means “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”. Mrs Ilott was in difficult financial circumstances and the Court – having had regard to the relevant factors set out in the Act - decided that reasonable financial provision could and should be made for Mrs Ilott’s maintenance, which relieved her everyday living expenses, without affecting her state benefits.

“The unusual feature in this case was the longstanding estrangement between Mrs Ilott and her mother, which raised the issue of whether that could effectively act as a bar to Mrs Ilott’s claim.

“However, the Court was willing to consider the reason behind the estrangement and decided it ought not to prevent Mrs Ilott from receiving an award, or to substantially diminish it. They found there was no suggestion that Mrs Ilott wanted to be estranged from Mrs Jackson; that whilst she may not have made the choices in life that Mrs Jackson thought were necessary for her to make a success of her life, she had made a success of her life in other ways by being a mother and homemaker, and that there may not have been fault on anyone’s part and that estrangement may simply have been the result of Mrs Jackson’s inability to make lasting relationships with anyone, of which there was other evidence.

Facts of each individual case

“Future applications for reasonable financial provision by disinherited adult children estranged from their parents may not be successful. Much will depend on the facts of each individual case and consideration of the relevant factors in the Act. Where a child has been disinherited by a parent, for a good or justifiable reason (in the ultimate judgment of the Court), they are likely to find it much harder to tip the scales in their favour and to persuade the Court that reasonable financial provision has not been made for them.”

Give clear reasons

Claire offers some clear advice, “For the parent making a Will, it is important they explain to the Will draftsman the reason(s) for the disinheritance of their adult child, the reasons behind any estrangement, and to ensure this information is recorded in the draftsman’s file note, within the Will itself, and/or in a separate document kept with the Will.

“It may also be helpful to record or explain the connection between the person making the Will and their beneficiaries, which may include charities. In turn, the Will draftsman should provide appropriate advice to the parent regarding the risks of a potential future claim by the child for reasonable financial provision, particularly if the child is in needy financial circumstances. In such a case, there is no guarantee that the child may not later be able to bring a successful claim for reasonable financial provision."