Can my Will be ignored?
Disinheritance and the law.
If you live in England and Wales and you want to make a Will, you have the freedom to leave your property and possessions to any person or organisation, such as a charity, with no legal obligation to leave anything to your family. The law only dictates the destination of your estate to your family if you die without a Will, known as dying intestate.
However a recent Court of Appeal case has challenged this testamentary freedom, particularly where independent adult children have been disinherited in a Will. Heather Ilott, who had been estranged from her mother Melita Jackson for over 25 years before her death, successfully challenged her mother’s Will from which she had been excluded in favour of three animal charities.
Mrs Jackson left a letter making it clear that she did not want her daughter to receive anything but nevertheless the court awarded Mrs Ilott a one-third share of the estate.
So why did this happen? Mrs Ilott brought her claim under the little known 1975 Inheritance (Provision for Family and Dependants) Act, which allows a deceased’s dependants to make a claim for reasonable financial provision if the Will does not adequately provide for them.
There has been an increase in recent years to the number of Wills being contested. The law is still evolving and each case is looked at individually but in the light of this recent decision there are some vital steps you should take minimise any dispute regarding your Will:
1. Seek professional advice and have a robust valid Will drafted by a qualified lawyer. This also provides an independent record that you had mental capacity at the time of making your Will and that you were not being influenced by anyone else.
2. Ensure that you sign a separate detailed letter of wishes when you make your Will explaining why you have excluded someone who may have been expecting to benefit.
3. If you choose to leave all or part of your estate to other people or organisations, it is important to demonstrate some connection with them and for this to be documented in your letter of wishes.