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The press have been afloat with coverage of The Court of Appeal decision in the Ilott v Mitson case whereby Heather Ilott has been awarded money from her late mother’s estate despite her late mother specifically excluding her from her Will.
Given the press coverage this case has received, it would appear that both charities and members of the public alike are now questioning the importance of a Will.
It is very important to realise that the case of Ilott v Mitson is very fact specific. The outcome has not change the law in anyway. Heather, the daughter, brought a claim against her Mothers estate under the Inheritance (Provision for Family and Dependants) Act 1975 which has always allowed certain categories of beneficiaries to make a claim against a deceased’s estate should they feel they have not be provided for financially.
The facts of this case, which have led to the reported outcome, are very fact specific and each case that makes its way to a Court room will be dealt with on its own merits. This case has not set a precedent nor changed the law in this regard. Heather, was an only child and her mother left her entire estate to three animal charities to whom she did not have any connection with. Heathers own circumstances were that she was in financial difficulties and relied upon benefits to support herself and her family which is one of the factors that the Court took into account when deciding upon the award she was ordered.
This case is not a new case, it was actually first heard back in May 2007. There have been three hearings so far with the possibility of a fourth should the beneficiary charities decide to appeal the decision. It is important to understand that the Court of Appeal’s decision is NOT authority for:-
1. A child has a right to provision from his/her late parents estate- Lady Justice Black quoted the Re Coventry case in making her decision as follows and confirms that this still holds true:
“Subject to the courts powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases…..”
It is therefore still the case that if the applicant is a child of the deceased it continues to mean that they are an eligible applicant, NOT that he/she has a valid claim.
2. A child with necessitous financial circumstances will obtain provision from their late parent’s estate.
Again, the Court of Appeal have approved the position from the Re Coventry case which remains good case law:
“the mere fact that the plaintiff finds himself in necessitous circumstances cannot, in my judgement, by itself render it unreasonable that no provision has, in the events which have happened,
been made for his maintenance out of the deceased’s estate”
It is still very important to make a Will with a professional. The above mentioned act is only likely to be of concern to you if you are excluding someone from your will whom you may reasonably be expected to provide for.
It is far better to have your wishes set out in a Will than to leave matters to chance. Whilst you cannot stop a claim being made on your estate, this is nothing new! You can minimise the risks by taking advice from a solicitor and ensure that your Will is drafted to reduce any such claims being successful.
You should bear in mind that Will writing is still an unregulated activity, in effect, anyone can call themselves a “Will Writer”. You should always seek a Qualified Solicitor to undertake your Will drafting process, not only are solicitors of course trained, they have the backing of indemnity insurance and are regulated in their professional capacity.