23 June 2019

Where there’s a Will there’s a war?

By Miranda Marshall, Director, Hayes + Storr.

With the number of Wills being contested in the High Court up 25% on recent years, it is more important than ever to secure your last wishes to avoid claims upsetting your legacy plans. The surge in claims is put down to increasingly complex family relationships. The landmark 2017 judgement in Ilott v The Blue Cross overturned accepted legal thinking. In that case Melita Jackson left most of the £486,000 estate to animal charities, but her estranged daughter Heather Ilott made a successful claim against the estate, arguing that her mother had not made reasonable provision for her.

The Supreme Court criticised the decision-making process of the lower Court of Appeal in the Ilott case and made some useful points. The Court of Appeal had given little weight to the testator’s clear wishes; which was wrong. While the wishes can be overridden, they are part of the circumstances of the case and must be taken into account. The Court of Appeal thought that charities have no ‘needs’ and therefore, unlike a person, they are not prejudiced if their benefit is reduced. For all Inheritance Act claimants, apart from spouse, ‘need’ is a necessary but not sufficient condition for an order. Awards are limited to maintenance (rather than a lump sum) and so, had an award by way of housing, been appropriate, the right order would be likely to have been a life interest, rather than an outright sum.

Cases since Ilott, such as Thompson v Ragget [2018], show that these principles are not being consistently applied by the Courts. As ever, the decisions are specific to the facts but Orders for capital sums by non-spouses are still being made, despite all the guidance of the Supreme Court. Reasons given include such an Order allowing all parties to move on from the estate litigation with all links being severed and the estate being substantial so there was ‘enough to go round everyone’. The closeness of the relationship between the deceased and the beneficiary of the Will has been held to make a difference.

Modern legal approaches include setting up a trust which would distribute funds in line with your wishes but could adapt to any change in circumstances instead of sticking rigidly to the Will. Communicating intentions to family members to avoid unpleasant surprises, appointing a committed and competent executor all help prevent misunderstandings when it is too late.

More than ever making a Will is something that must be done with advice and careful thought. It is clear that documenting your reasons for making any testamentary dispositions likely to be unpopular needs professional input and careful documentation.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.