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Testamentary freedom under attack

19 April 2011

The principle that you can leave your estate to whoever you like has been undermined in a shock decision by the Court of Appeal.

In the recent case of Ilott v Mitson Heather Ilott, using legislation designed to protect those who were genuinely dependent on the deceased, successfully challenged her late mother’s will and was awarded ten per cent of estate.

Heather’s mother, Melita Jackson, had made a will leaving nearly all her estate to a group of charities.  She took the wise step of leaving a detailed letter for her executors, explaining her decision to exclude Heather from her will. They had long been estranged and they had hardly seen each other in the 24 years since Heather left home, aged 17.

Mrs Jackson stated in the letter that she had made it clear to Heather, now 50, that she would not be inheriting anything in the will.

Despite Mrs Jackson’s great care, the Court of Appeal saw fit to override her wishes in awarding Heather Ilott £50,000 from the estate. It seems that the sole grounds for this were that she has five children and lives on benefits.

Now, in an attempt to increase her award, Heather has won leave to challenge the ruling. Her appeal will be heard in the High Court by another judge sometime later this year. The charities involved may well be taking their own steps to appeal.

A Willans Partner recently said: “The case seems to suggest we are moving towards a position where the courts, regardless of the original intent of the law under which the claim was brought, can simply impose their ideas of what is fair, regardless of the deceased’s clearly expressed wishes.

“What more can be done when a client makes it clear that he or she wishes to exclude or materially limit an adult child’s interest in the estate?

“In the light of this ruling, there may be a benefit in inserting a forfeiture clause, or ‘no contest’ clause. Up to now, these have not been commonly used. However they may cause a potential claimant to think twice before running a claim for fear of losing their inheritance and exposing themselves to adverse costs orders.”

This is a transcript of Mrs Jackson’s letter of wishes:

To the Executors of my Will in the event that my Will
Dated 16th day of April 2002
Is contested by my daughter Heather Ilott

I have made no provision in my Will for my only child and daughter, Heather Ilott, for the reasons stated below.

My daughter left me on Sunday 19 February 1978 when she was only 17 years of age. Whilst I was still sleeping she crept out of my house during the early hours of the morning. I later discovered that she was living with a man named N Ilott. Mr Ilott’s mother had allowed my daughter to live with the family at Great Munden, Hertfordshire. In spire of all my efforts to reconcile with her she did not return home.  My daughter asked that I contact her no more.

I have only seen my daughter twice since she left home, on my 60th birthday and in May 2001. My daughter now has five children and I have not seen any of them since my 60th birthday.

My daughter has been extremely deceitful to me and has told me a number of lies.

Because my daughter left me without any explanation and has made no effort to reconcile with me I feel as though I have no moral or financial obligation to provide for her. My daughter has not been financially reliant upon me since she left home, although I did make gifts of money to her on her birthday and at Christmas up to and including her 21st birthday, although she refused to acknowledge any of the payments that I made to her.

If my daughter should bring a claim against my estate I instruct my Executors to defend such a claim as I can see no reason why my daughter should benefit in any way from my estate bearing in mind the distress and worry she has caused me over the years. I have made it clear to my daughter during her lifetime that she can expect no inheritance from me when I die.

My Executors should use this letter as evidence in any Court proceedings as they think fit.

(The letter was signed and duly witnessed on 16th April 2002)


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Simon Cook LLB (Hons), TEP
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