It’s a fact – you do have the right in law to leave your money to anyone you like – even the cats’ home – and I’m sure they would be very grateful. The problem comes when you don’t provide for certain categories of dependents who can argue they are entitled in law to receive some provision.
Private client lawyers are always advising their clients to think carefully before cutting off relatives who have upset them and who have stopped visiting. The Court lists are full of cases where these dependents are seeking to, in effect, re-write the terms of a will after death because they can claim under the Inheritance (Provision for Families and Dependents) Act 1975
This act aims to allow the Court to look back at the deceased’s estate and balance against that the fair and reasonable provision for certain people who come within certain categories, such as spouse or civil partner. This can be where there is no will and the deceased died intestate, where the provision left for them is not enough or where they have been left out of the will entirely.
There is no substitute for proper legal advice firstly, in drafting your will and secondly, if you are dealing with the after effects of a devastating will provision.
How would you face up to the financial realities of splitting up? Sadly, the future can look grim because suddenly the truth may be dawning – after divorce, one partner has to face all the bills alone and often with a family to provide for.
Often the partner without the care of the children is not prepared to face up to the reality of paying maintenance for what they cost – clothes, trainers, school trips etc. We would always advise clients to focus as soon as possible on the realities of their financial future and the budget that will be needed.
We would always advise our clients to protect themselves at a very early stage by closing bank accounts to avoid becoming jointly and severally liable for debts they haven’t incurred, in case they have a vindictive or spendthrift partner. Getting involved in debts and CCJs, could severely affect your credit profile and damage your chances of getting a mortgage in the future.
All our clients in this position are strongly advised to review their wills. Divorce affects a will provision in any event because a divorce decree absolute means that the ex-spouse is “deemed” to have pre-deceased. A new will should therefore always be made, as well as a full review of your financial position going forward including life cover, pensions, investments and so on.
Sounds dramatic, I know, but it might have been said by the mother (Mrs. Jackson) to her only child (Heather) in the case of Ilott v Mitson when Heather ran away from home almost 40 years ago. This case hit the headlines recently – “Your will can be ignored say judges” in The Daily Telegraph. As ever, newspaper headlines only tell part of the story.
This is a sad tale of family life – children (especially teenagers) fall out with their parents all the time but generally reconcile. In this case, we are told that Heather ran away at the age of 17, married someone the mother didn’t approve of and, even after attempts at reconciliation over the years, there was no happy ending. Mrs. Jackson didn’t have millions – the total estate was huge amount for most people – almost £500,000 – but she decided to disinherit Heather and leave it all to charity. She had explained her reasons for her bequests in side letters and she even went so far as to instruct her executors to fight any claim on her estate by Heather, which, in the end, they did.
Charities who benefit in this way are in a very difficult position – they are duty bound to honour the wishes of the deceased who was kind enough to want them to benefit but also they are fighting against a very unhappy family member – and having to pay the legal costs of that fight.
What is not clear from the sensationalist headlines is that this was first decided by a District Judge in a County Court in 2007 – he agreed with Heather’s case and allowed her claim in the sum of £50,000. It went on appeal up to the Court of Appeal first in 2011 and then again this year.
It is always open to family members and those who are financially dependent to challenge a will under the Inheritance Act (Provision for Family and Dependents) Act 1975 [my emphasis] if they feel they have not been properly provided for. Here, the notable point is that the judges felt that although the Claimant was a grown woman who had made her own lifestyle choices, she was in difficult financial circumstances. They felt her mother should have made some provision for her in the will, particularly as there was no “link” with the charities involved. I think many parents might think this an odd outcome and quite hard on the charities themselves.
Our advice to our clients remains that they should think carefully about their choices and if they decide to leave their estate to beneficiaries who are not as expected, full details should be set out in the notes and also in a side letter. This judgement also shows us that if you want to leave significant sums to charities, there should be some lifetime link with them – perhaps support with a regular donation.
It is open to the charities to take this case to the Supreme Court for a final decision, so we will have to wait and see on that but for now, as ever, I would say you should always get professional advice on your will.
Because I deal with the misery which follows when either someone hasn’t made a valid Will or it’s failed or hasn’t provided for the family, I know how distressing it is. I also know how easy it is to avoid a mountain of problems by making a properly drawn Will using a qualified Solicitor. All too often though, I meet with very distressed family members who simply can’t understand why their loved one did not take this process seriously and think enough of them to make a proper Will. It seems to be a taboo subject, for some reason. Unfortunately, fighting over an Estate can be extremely costly (running into thousands of pounds) and, apart from the money, the dispute usually destroys the family, ripping them apart while they argue over the Estate assets. People get very angry and hurt about how they see they have been treated by the deceased. I even heard a story about two sisters who wanted to argue over the fur coat that their Mother had left to one of them. They were seriously considering spending huge amounts of money on legal fees to fight about that because they really felt so hurt. Of course I would never advise anyone to spend legal costs arguing over just a fur coat but there are cases where those left behind have not been properly provided for, perhaps a second family with valid claims for financial support which the deceased should really have thought about. My advice would always be to make a will as soon as possible – certainly if you have children and dependants who rely on you for financial support.