Why is it wrong to assume your parents will leave anything to you in their Will?

Because English law, known as testamentary freedom, does not enable a family member to automatically receive a share of a person’s estate on their death.

However, some 45 years ago the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) was introduced. This has been the basis of an increasing number of claims in recent years, probably fuelling   an “expectation culture”.

It allows certain individuals to apply to court to legally challenge a deceased person’s Will on the basis that it did not make reasonable financial provision for them. But this is an objective test.

The people who can challenge a Will are:

the deceased’s spouse or civil partner;
a former spouse or former civil partner of the deceased who has not formed a subsequent marriage or civil partnership;
a cohabitant (someone who had lived in the same household as the deceased for a period of two years or more as their husband or wife);
a child of the deceased;
any person…treated by the deceased as a child of the family, e.g a step-child;
any person … who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased, e.g. a nephew or a grandchild.

Once the court has decided that “reasonable financial provision” has not been made it exercises a principled discretion to determine what provision ought to be made taking into account a number of specified factors.

So how is the tension between testamentary freedom and the application of the Inheritance Act presently managed?

Cue lots of expensive court cases.

In 2017 Mrs Ilott’s claim (Ilott v The Blue Cross and others [2017] UKSC 17) came before the Supreme Court, the highest court in our country, having previously been heard at the High Court and the Court of Appeal.

Lady Hale described this case as raising “some profound questions about the nature of family obligations”.

Despite her lifelong estrangement from her mother, Mrs Jackson, the earlier High Court hearing awarded Mrs Ilott £50,000 out of the estate of £486,000 which had all been left to animal charities in the Will. The Supreme Court restored this decision but Lady Hale felt that a respectable case could have been made for Mrs Ilott to have received nothing.

The Supreme Court, therefore, confirmed that the testator’s wishes are relevant. They are part of the circumstances of the case and should be assessed together with all other relevant factors. So, a balance has to be struck but how is this accomplished?

Cue more court cases.

In Nahajec v Fowle (July 2017), a claim by an adult daughter, the judge considered that “the reasonableness of the deceased’s wishes are undoubtedly capable of being a factor for consideration”.

More recently, in January 2019, in Wellesley v Earl Cowley, testamentary wishes were considered in the context of “all the circumstances”  and there was a detailed examination of the reasons for the estrangement. The claim by the  deceased’s adult child’s was dismissed.

However, there have been other cases where limited weight has been attached to the testator’s wishes for example, Lewis v Warner (Court of Appeal, December 2017), Ubbi v Ubbi (July 2018) and Clarke v Allen (May 2019). Lewis was a claim by a long-term cohabitee, Ubbi an infant child claim and Clarke a widow’s claim.

These cases show that the outcome is very fact sensitive. That is the strength of a discretionary process but the price is often a difficulty in predicting the outcome of a claim at the outset when all the facts may not be known.

Whilst there is never any guarantee that family members will not challenge your Will, these cases clearly demonstrate the need to have Wills drawn up professionally.

So, for further advice call Amba Legal Services now on 01299 251442.