Many of you have been contacting us with concerns about how
the recent case of Heather Ilott (see post on Blog dated 28th July 2015) affects Wills you have made, or are thinking
of making, in which you exclude a close family member. Particularly in this
case one of your children.
Although English Law carries no specific rules about how
people should dispose of their estates there have long been laws that protected
family members who had been unreasonably disinherited. The most recent of those
is the Inheritance (Provision for Family and Dependants) Act 1975.
One of the categories of the family that has some protection
is children.
When Heather Ilott’s mother left her nothing and gave her
entire estate to charities the issues in the law were decided by senior judges
in the Court of Appeal.
The decision in favour of Ms Ilott appears to fly in the
face of how most lawyers had been interpreting the law and to make it much
easier for disinherited children to stake claims.
Over the next few years there will, no doubt, be more cases which help
to set the guidelines more clearly but at the moment when we make Wills we must
work with the new situation.
I always ask new clients to tell me about their families and
in particular I am looking to see if any likely claimant under the 1975 Act is
not getting what might be “reasonable provision”.
In such cases I try to find out why the client has made this
decision. There are usually very good reasons. I advise the client about the
potential risk of a claim and sometimes the client makes changes in the Will to
try to avoid future conflict.
A good lawyer will make sure that a proper record is made of
the reasons for the client’s decision.
This could be written in the Will, it could be put into a
signed statement, it could be signed on my notes or it could be recorded in my
letter to the client.
The decision in Ilott means that I will be advising a great
many more statements.
The statement will need to address the issues highlighted in
the Ilott case.
The first is why the person is being left out.
The second is to establish the lifestyle that the affected
person has. The Ilott case was about raising Ms Ilott’s standard of life to
what the judges thought was “reasonable”. How does that point fit into my
client’s circumstances?
The third is to explain why the parties who have taken the
share instead should have it. In the Ilott case the mother who made the Will
had no real connection with the charities she gave the money to. It might have
been a very different outcome if she had been a lifelong supporter of them or
if she had had some substantial support from them, for example from a charity
such as Macmillan.
If I need to attend on the client to prepare and write up
the statement there will have to be a charge which will depend on the time
taken, probably at least £50.
However the client may feel that they can set out all the
facts in a statement themselves in which case there would be no charge for
storing the statement with the Will.
These are early days for the legal profession in reacting to
this case but I hope these few words are of some assistance.
The essential message is the same as in my other piece about
Wills:
Use a solicitor,
preferably one who has been recommended to you.
To contact Roger call our Moseley office on 0121 449 5050
or email enquiries@hhb-mo.co.uk
