Not a lot – or at least much less – if a recent court of appeal judgment is anything to go by. Worryingly, those who make a will cannot, as things stand, rest in peace knowing their assets will pass to their chosen beneficiaries and to no one else. Why?
The answer lies in the Inheritance (Provision for Family and Dependants) Act 1975 and the court’s interpretation of what it says. The Act allows children (and some others) who have not inherited as a result of intestacy (where there is no Will), have been left out of a Will, or have not been left as much as they need, to challenge the Will and claim financial provision. But where does it all end? Can your Will be ignored and, if so, to what extent?
The Court’s judgment has made clearer the rules relating to what is reasonable provision for adult children. The brief facts of that case were that mother and daughter fell out following the daughter’s teenage elopement with her boyfriend. Her mum then left the entire estate to various charities and excluded her daughter from her Will. To support this she even left a ‘Letter of Wishes’ saying why she did this – although unfortunately the letter was inaccurately worded.
On the basis that she was not given a reasonable provision, and that she was on benefits, had no pension, needed to buy a home in which to live with her childhood sweetheart partner and five children and have a holiday, the daughter made a claim under the 1975 Act – and was awarded a whopping £164,000 out of her late mother’s ca. £500,000 estate.
What this all means is that people can still disinherit their off spring but will have to give exceedingly good reasons why, while adult children left out of Wills may now find it easier to challenge Wills.
If you were the judge in that case would you interfere with the mother’s wishes? Whatever your answer, you may be right. It remains to be seen whether the charities are advised to appeal the decision to the Supreme Court, where further costly litigation could diminish the estate.
The lesson from this case is not that there is no point in making a Will – far from it. If the mother had considered a realistic gift, or if she had left a proper letter of wishes, the position may well have been different. Alternatively, she could have given away part of her estate during her lifetime – with the right tax-planning, of course – so she could be sure her money went to her chosen recipient.
If you think you are entitled to something from the Will of someone who has wrongly excluded you, it may well be worth considering challenging your case. On the other hand, if you’re thinking of making or updating a Will, it’s now more important than ever to get professional advice and help. You could avoid years of worry and costly litigation, not to mention family arguments – enough to make you turn in your grave!
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Keene Marsland
6 Clanricarde Gardens, Royal
Tunbridge Wells, Kent TN1 1PH
www.keenemarsland.co.uk
