Writing a will: How to ensure that your legacy is honoured

Last week appeal judges said a mother had been wrong to leave her daughter nothing. Simon Read asks what the rest of us have to do to avoid the same fate
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The Independent Online

If you decide to cut your child out of your will, isn't that your right? Not if a controversial Court of Appeal judgment this week is anything to go by.

In the ruling, a woman who had been left out of her mother's will after falling out with her ended up being handed £164,000 from the estate, which had originally been left to three animal charities.

The full story is in the panel below, but the verdict means, in effect, that our legacies might not be honoured. It opens the door to adult children questioning the validity of parents' wills, especially if it is judged that they have been treated unfairly.

The case won't hit the validity of wills, but it will make it easier for children to dispute them. It will also affect executors – who are responsible for distributing an estate – potentially embroiling them in expensive legal disputes that could last for years.

Legal experts also warned that the ruling could have implications for how people need to draw up their wills, in particular if they want to leave a legacy to a charity. In future, people may have to explain the reasons why they have left money to certain parties, and demonstrate tangible connections to them.

Robert Brodrick, partner at Payne Hicks Beach, says the case shows that all disinherited children now may have a valid claim against their parents' estate, and not just the person making the challenge. "Lady Justice Arden [who presided over this week's case] was very clear in her judgment that the court has to balance the claims on a deceased's estate 'fairly', and strike a balance between the reasonable financial provision on the one hand and the testamentary wishes of the deceased on the other."

In other words, a court must look at the needs or expectations of other heirs as well as the person bringing the claim.

What should you do now to avoid potentially expensive legal problems later? "It is vital that people provide a clear and concise explanation in their will of what provision is being made for whom and why," warns Andrew Wilkinson, partner at the law firm Shakespeare Martineau.

For example, many people want to leave something to a charity, and demonstrating that this is not being done out of spite means there must be clear evidence of donating or direct long-term involvement, for the bequest to be upheld.

"The best advice is always to try and talk to family members when making a will, so that they understand the reasons behind any decisions, particularly if leaving money to a non-family member such as a charity," says Mr Wilkinson. "It is also sensible to keep wills updated should there be any change to an individual's circumstances."

Using a trust is one way to avoid the problems created by this week's ruling, reckons Rachael Griffin, financial planning expert at Old Mutual Wealth. She says the benefits of using a trust are confidentiality, the ability to choose beneficiaries and add or remove them in the future, tax efficiency, and putting you in control of who benefits from your estate and when.

"For people who wish to specifically exclude certain individuals such as a family member, this can be achieved through the trust," Ms Griffin says.

"The Act used in [this week's] case, the Inheritance (Provision for Family and Dependants) Act 1975, only applies to the estate of a deceased, so where provision is provided by trust, this Act will not apply."

In short, if you have a potentially contentious will, you need to ensure that it is legal – especially if you have charities you want to support.

James Aspden, the solicitor who represented the three animal charities, said: "This is a worrying decision for anyone who values having the freedom to choose who will receive their property when they die."

Ilott v Mitson: The landmark case

This week's momentous court case, Ilott v Mitson, began in 2004 when Melita Jackson died and left her £500,000 estate to three animal charities.

She did so after falling out with her daughter Heather Ilott – a rift that blew up 37 years ago after Heather, who was an only child, eloped with her boyfriend and future husband, Nicholas, when she was 17, against her mother's wishes.

The couple went on to have five children, but Mrs Ilott and her mother never healed the rift.

The final falling-out came when she named her fifth child after her paternal grandmother, whom her mother did not like.

Before her death in 2004, Mrs Jackson wrote in a letter to lawyers: "I can see no reason why my daughter should benefit in any way from my estate."

As a consequence, Mrs Jackson left her £500,00 estate to the RSPCA, RSPB and Blue Cross animal charities.

Mrs Ilott challenged the will in 2007 under a right to "reasonable provision", which is contained in the Inheritance Act 1975.

It is normally used for young children who are left out of wills.

But after an eight-year court battle, Mrs Ilott, now 54, was granted a third of the estate – around £163,000 – on the grounds that her mother did not leave "reasonable provision" for her in the will.

Lady Justice Arden in the Court of Appeal said Mrs Ilott should receive the money because her mother had been "unreasonable, capricious and harsh".

The fact that Mrs Jackson had little connection to the charities to which she left her money played a big part in the ruling, the Court of Appeal judges said.

The court ruled that without the legacy Mrs Ilott would face a life of poverty because she was on benefits and could not afford to go on holiday or even buy clothes for her children.

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