Disinheritance – Can You Do It?

Disinheritance – Can You Do It?

It is not uncommon for individuals to disinherit and leave a loved one out of their Will due to a falling out or they think that other members of the family are more deserving of the estate.

However, due to a recent case, if you wish to exclude a child from your Will you may need to make your instructions clearer than you ever thought.

The Case

Ilott -v- The Blue Cross and others [2017] UKSC17: Fundamental Principle of Testamentary Freedom Upheld

In the case referred to, Melita Jackson, the mother to Heather Ilott became estranged from her daughter in 1978 when she was just 17 years of age. Melita Jackson lived alone at the time of her death and had been estranged from her daughter despite three attempts at reconciliation over a 16-year period. In 2002, Mrs. Jackson executed a new Will with a letter expressing wishes that she wished for her daughter not to receive anything. This also included a letter explaining her reasons for disinheriting her daughter.

Melita Jackson died in 2004, never forgave her daughter and subsequently left her £486,000 estate to three animal charities; Blue Cross, RSPB and RSPCA.

The Ruling

Melita Jackson passed away in 2004 and her daughter contested her mother’s Will on the grounds that her mother had not made ‘reasonable provision’ for her. Under the Inheritance (Provision for Family and Dependants) Act 1975 makes provision for family members and dependants to apply for provision from the estate of someone who has passed away providing they can show that it is needed for maintenance.

In 2007, Mrs. Ilott was initially awarded the sum of £50,000. However, following the ruling being overturned, the Court of Appeal ruled that Mrs. Ilott should receive the sum of £164,000. The decision to award the second sum was made on the basis that it allowed Mrs. Ilott to purchase her housing association home and also leave her with £20,000 to supplement her and her husband’s income. The couple live modestly on state benefits.

Additionally, the Court stated that the majority of that payment originated from a compensation payment following her father’s death. Mrs. Ilott argued this point noting that it was money inherited by her from her father’ death and regardless of her she felt about Mrs. Ilott, she strongly believed that her father wanted provision made for her. Mrs. Ilott’s father died before she was born.

Consequences of the Ruling

The purpose of the 1975 Inheritance (Provision for Family and Dependants) Act was to protect close dependants of someone who has died. The original District Judge based his ruling upon this and confirmed that Melita Jackson ‘owed her daughter the ordinary family obligations of a mother towards her only child who is an independent adult’.

Relevant also to the decision to award the sum to Mrs. Ilott was that Melita Jackson had “no connection” to the three charities to which she left her estate.

It was ruled that Melita Jackson “acted in an unreasonable, capricious and harsh way towards her only child”.

After reading this, it may be thought that there is almost ‘no point’ in disheriting your child or other family member from your Will. However, the ruling provides that you can still disinherit but only where you have grounds for good reason and have the ability to explain what connects you to the people or organization to which your estate has been left.

It is therefore prudent to note that for centuries in Britain, “freedom of testamentary disposition” i.e. the right to put your money where you like, has been presumed. However, as a result of rulings such as these, this is now crumbling away.

Things to Consider 

It is now ever increasing in Britain to see Will disputes. The number of Will, Trust and Probate cases heard each year have risen to an average of 633 (2014), compared to an average of 485 in 2009.

Each case is of course judged on their own individual circumstances however there are a number of underlying factors that can be seen:

  • Family dynamics are now more complicated than ever. Divorce rates over the recent decades have meant that many second and third families have been created.
  • House Prices – predominantly, those who die leaving a home owned by themselves, essentially leave an estate worth fighting for.
  • Mental Capacity is now more of an issue than ever. People are evidently living longer, often with extended periods of mental decline toward the end of their lives resulting in them becoming vulnerable to cohesion and confusion when drafting a Will.

Further to the factors above, it is therefore key that an individual clearly demonstrates their reasons for disinheritance.

Despite providing a reason for disinheriting her daughter, the ultimate downfall of Melita Jackson’s was that she had failed to demonstrate why she had left her estate to the specific charities named. No clear connection could be concluded. In addition to leaving specific instructions with your Will, the persons to be disinherited should also be informed, despite the difficulty in this. Although this may not stop them contesting the Will upon your death, they may be more understanding as to the reasons.

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