The Case of Heather Ilott - Excluding Family Members from your Will

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