The recent Court of Appeal case involving Heather Ilot and her late mother’s estate has created a number of questions for people who are considering making a Will and excluding family members as their beneficiaries.
Heather Ilot’s mother, Melita Jackson, had deliberately excluded her daughter from her Will and left her estate to three animal charities. The decision to leave your family members out of your Will is difficult for many and so when making such an important decision, how can you ensure that your wishes will not be ignored?
Q: I do not wish for my children to benefit and would like to leave my estate to Charity. Can I do this?
A: In England and Wales the law recognises your testamentary freedom, which allows you to leave your estate to whoever you wish; family, friends and charities of all types, including those for educational, religious, health and welfare purposes.
Q: On what basis can a family member bring a claim against my estate?
A: There are a few ways in which a claim can be brought against your estate. The main three are:
- A claim under the Inheritance (Provision for Family and Dependants) Act 1875, which allows a specific list of relatives or people who are financially dependent on the deceased to bring a claim for reasonable provision.
- The argument of proprietary estoppel, which is where you had made a promise to a person during your lifetime that you would benefit them on your death. They have subsequently relied on your promise and you have then gone back on your word.
- When the validity of your Will is questioned; for example, due to its execution, your mental capacity or if there is the argument that you were put under pressure to leave your estate to specific beneficiaries.
Q: How can I prevent a claim arising?
A: If you do not wish for family members or those who may feel they should be provided with reasonable provision to benefit, you should write a detailed letter explaining your reasons for not benefiting your family members, together with details regarding whom you wish to benefit and why you have chosen those alternative beneficiaries.
If you are not benefiting children because of a personal dispute, explain the dispute and the background. Your letter of explanation is private and would only be seen by your executors and trustees of your Will if it was ever contested. Alternatively, you may not wish to benefit your children as they are financially stable and they do not require the funds. If this is the case you would need to provide details of their circumstances.
Q: Will a Letter of Explanation prevent a dispute?
A: Sadly, a Letter of Explanation and Solicitors notes may not be enough to prevent a dispute. However, it can provide a detailed insight into your thoughts and considerations when preparing your Will in order to defend against any claim or reduce the likelihood of success for someone contesting your Will. However, if a dispute is successful, the Court will also carefully consider the Letter of Explanation and Solicitors notes in considering the value to be awarded, together with the personal circumstances of the individual claiming against your estate.
Q: If my Will can be altered, why make a Will?
A: If you do not make a Will your estate will be divided according to the ‘Intestacy Rules’, which are likely to benefit those that you do not want to leave anything to.
Advice about making a Will or disputing a Will
For more advice on the preparation of Wills please contact a member of our Wills, Trusts and Probate Department. Bray & Bray have three main offices across Leicestershire, feel free to phone or pop in to talk to our solicitors.
Leicester 0116 254 8871
Hinckley 01455 639 900
Market Harborough 01858 467 181