Leaving a Close Relative Out of Your Will?

Sharon Auton, who leads TSP’s Dispute Resolution team, is a member of ACTAPS, the Association of Contentious Trust and Probate Specialists. Sharon and her team are often asked about contesting or challenging a Will, also known as contentious probate, and have acted for many clients in this area.

In many countries, although not the UK, there are strict rules which impose succession principles on an estate. This means that someone making a Will in those countries cannot control how property is passed on their death. EU Succession Regulation, which TSP Wills and Estates solicitor, Aileen Hirst, recently wrote about here, will unify some of this, but leaving a close relative out of your Will, a testamentary freedom that is one of the most deeply entrenched popular conceptions in the law of England and Wales, does not always go as planned, as highlighted by the recent case of Ilott vs Mitson and others.

The finer details of the case can be read in another of Aileen’s articles here.  The main thrust of the case, however, is that the deceased's daughter, who had been estranged from her mother for 26 years, and who had been left out of her Will, (in which the bulk of the estate had been left to three animal charities), made a claim on her estate under the Inheritance (Provision for Family and Dependants) Act 1975. The Supreme Court recently handed down Judgment on this much publicised case; a culmination of nine years of litigation, attracting a lot of media speculation that the judiciary was interfering with a testator’s testamentary freedom.

Initially the Court awarded the disinherited daughter £50,000; this was appealed by the daughter, on the basis that it was not enough, and the Court of Appeal awarded the daughter £143,000 to buy the house she lived in and an option to receive a further £20,000. The charities appealed this decision and the Supreme Court reinstated the award of £50,000 made by the District Judge at the original trial.

It had been hoped that this case would clarify the position of claims being made under the Inheritance Act by adult children, but the Judgment confirmed that there was a range of alternative outcomes which would also have been justified. Each case will turn on its own facts but it highlights the fact that, if you make a Will and want to leave family members out, it is really important to make your instructions very clear and explain your reasons why.

If you need advice in this area, the TSP Dispute Resolution team can help and will advise you on the best course of action. Sharon can be contacted on 01206 217043 or by email at Sharon.auton@tsplegal.com