It is a long standing principle of English Law that a person has testamentary freedom. This means that a person can leave his or her estate as they see fit.
The principle of testamentary freedom was restricted by the Inheritance (Provision for Family and Dependants) Act 1975. The Act allows certain people to make a claim against the estate of the person who has died. The claim will be based upon that person not having made reasonable financial provision for them in their will. The most common situation is where a husband or wife or the children make such a claim.
The recent case of Ilott v The Blue Cross and Others brought the issue of testamentary freedom into focus. The facts of the case were that Rita Jackson had made a will leaving her estate to three animal Charities, The Blue Cross, the RSPCA and the RSPB. She had deliberately excluded her daughter as a beneficiary of her will. The latter was in receipt of state benefits and was estranged from her mother for many years. The estate was worth almost £500,000.
Mrs Ilott had challenged the will under the Act and was awarded a sum of £50,000 by the Judge at the initial hearing. She appealed the case to the Court of Appeal. The Court increased the award to £143,000. This would allow her to buy her rented property. She also received a capital sum of £20,000.
The Supreme Court restored the original award of £50,000.
The position after the Supreme Court decision is as follows:
- The Judgment does not prevent adult children from making an application under the Act.
- The principle of testamentary freedom has been restored. The wishes of the person making the will are still relevant and will be respected. In this case, Mrs Ilott’s mother chose not to make her daughter a beneficiary of her estate entirely for her own personal reasons. The Court of Appeal’s approach had given little regard to her wishes in making its Judgment. Its justification for this approach was that the Charities had little expectation of receiving a benefit from her estate. This approach should be treated with caution given the importance of testamentary bequests for Charities and because a Testator’s chosen beneficiaries do not need to justify their claim either by need or by expectation.
If you require any advice upon the issues raised in this blog please contact Peter Kirrane on 01924 457171 or firstname.lastname@example.org or Stephen Morgan on 01924 387110 or Stephen.email@example.com.