Wills after Ilott - the importance of making a will

What may surprise some people is that even when you make a will you may not be able to leave your Estate entirely as you wish and it is important to take early professional advice from a solicitor.

Sadly, life does not always work out as we would hope and in unfortunate circumstances you can imagine a person wishing to disinherit a child, their spouse, former spouse or some other dependant. For over a hundred years the law has been prepared to step in. The current legislation is the Inheritance (Provision for Family and Dependants) Act 1975 which allows the court to intervene upon an application where a will and/or the law of intestacy fails to make reasonable financial provision for the applicant.

Now just because you are, say, a child who has been left out of a parent's will does not mean the court will intervene. You only have a short time-frame in which to make an application and in each case the court will ask itself whether there is reasonable financial provision and if not, whether and how to exercise its powers. The courts will carry out a balancing act, weighing (amongst other things) the financial resources and needs of the applicant, with those of other applicants/beneficiaries against the size of the Estate. Every case is decided on its facts and the facts in each case are always different.

The recent case of Ilott v Mitson and others [2011] EWCA Civ 346 has gained some media attention. Briefly the facts were that Mrs Ilott was estranged from her mother when she eloped and married someone her mother thought unsuitable. Various attempts were made at reconciliation without success. Her mother died leaving her Estate, worth in the region of £486,000, to various animal and bird charities to which she had little interest in or connection to in her lifetime. Her mother wrote a letter of wishes which contained inaccuracies and was generally unfairly critical. Mrs Ilott's financial position was not good, with her having five children, a low income (mainly benefits), no savings or pension and with few future employment prospects.

If you were the Judge hearing the case what would you do? Would it be just to intervene to overturn the will of the parent to benefit the child - yes or no?

Whatever your answer, you may be right.

The first instance Judge who heard the case considered the law and applied it to the facts and said yes when he awarded Mrs Ilott 50,000 from the Estate. The appeal Judge who then heard the case considered the law and applied it to the facts and said no when she found that there should be no payment to Mrs Ilott from the Estate. When the case reached the Court of Appeal the original decision to make an award to Mrs Ilott was upheld. However, in reaching its decision, the Court of Appeal said that on the facts there was room for a legitimate difference of opinion. It is a value judgment and two different judges could apply the law to the same facts, reach two different decisions and both would be right (so to speak). The point made by the Court of Appeal was simply that an appeal Judge should not interfere with the decision of a first instance Judge unless the decision was plainly wrong.

The lesson from this case is not that there is no point in making a will. The opposite is true. If Mrs Ilott mother had not made her will out of anger, if she had considered a realistic gift, if she had included a proper letter of wishes, then the original Judge's decision may have been very different.

It has never been more important to make a will and take professional advice from a solicitor when doing so. If you do not have a will or you need to update your existing will, speak to one of Emsleys' Wills and Probate team on 0113 201 4900, or email the team direct if you would like more information on making a will for confidential expert advice.

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