Taking the heat out of wills in estranged families

An Ask the Expert article authored by partner Martin Holdsworth on This is Money’s Ask the Expert  column has prompted an extremely lively and heated debate.

The discussion reinforces the importance of taking the right steps when deciding who will be the beneficiaries of wills – and of ensuring that those you do not want included cannot claim.

Martin works with clients on disputes over the validity of a will, the management of trusts and deals with claims by disappointed beneficiaries either seeking greater provision from a deceased’s estate or responding to claims made by others.

The latest edition of the Legal 500 guide to the best UK law firms recommends Martin as a‘well-known and experienced practitioner’.  He is listed as one of only two leading individuals listed across Yorkshire and Humber and among just 37 ranked nationwide (31 of whom are based in London and the South East) in contentious probate.

Below is the scenario Martin was asked to advise on – along with his response in full.

Q and A from This is Money – the money section of MailOnline

I am divorced and remarried and have two stepchildren with my wife and two grown-up children with my former wife. I do not see my son by my first marriage, as we fell out some years ago and despite my attempts at reconciliation he will not talk to me. I have decided that I would like to write him out my will and leave half my estate to his sister and the other half to be split between my two stepchildren.

Family dynamics are never simple and it isn’t uncommon for family members to become estranged.

When we decide who we want to benefit when we pass away, we naturally think of those closest to us and who we have an active relationship with. In English Law, the basic principle is that of ‘testamentary freedom’. This allows someone to leave their estate to exactly who they wish – regardless of family connections.

The principle of testamentary freedom has existed for centuries and, while it continues to be the starting point, the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) can sometimes challenge this basic principle. It’s worth remembering that much of continental Europe has a statutory element of forced heirship – you can’t disinherit your children and a proportion of your estate must pass to them. In England, we only started to question testamentary capacity 40 years ago. Before then, the principle was sacrosanct.

If we assume that your will is valid, how might your son use the 1975 Act to have a claim on your money?

For your son to succeed in getting the court to vary the terms of your will, he must establish that the financial provision (or complete lack of it) he’s received isn’t reasonable financial provision. He must also convince the court that he should be entitled to an amount of money that’s viewed as reasonable financial provision. It’s worth noting that no financial provision can be reasonable financial provision.

Under the 1975 Act your son would be an eligible claimant and could bring a claim in the first instance. But this doesn’t mean that he’d automatically succeed.

Once it’s established that he’s entitled to bring a claim, your son would have to set out his current financial circumstances and why he needs money from your estate. At this point, some beneficiaries of your will might want to set out their own financial circumstances in order to ‘defend’ their current entitlement. However, this isn’t a requirement and a claim under the 1975 Act can still be properly defended.

The 1975 Act also provides a huge range of criteria, shown below, that will be considered when deciding how much is reasonable financial provision. Each consideration has equal weighting:

• The financial resources and needs your son has or is likely to have in the foreseeable future;

• The financial resources and needs which any other applicant under the 1975 Act has or is likely to have in the foreseeable future;

• The financial resources and needs other beneficiaries of your will may have or are likely to have in the foreseeable future;

• Any obligations and responsibilities that you had towards your son and the other beneficiaries of the estate;

• The size and nature of your estate;

• Any physical or mental disability your son or any of the other beneficiaries may have;

• Any matter, including the conduct of your son and any other person, which, in the circumstances of the case, the court may consider relevant.

The court must evaluate all of the above factors as a whole and conduct a balancing act between those factors to determine if there’s been a failure to make reasonable provision. It is far from an exact science and each case will turn on its unique circumstances. However, it’s mostly a needs-based assessment.

A recent high profile court case – Ilott v Mitson – dealt with similar circumstances. The result helps to illustrate how you can maximise your chances of successfully writing your son out of your will.

In brief, Mrs Jackson had been estranged from her daughter, Heather Ilott, and passed away leaving nothing to Heather in her will. Heather then brought a claim under the 1975 Act, which resulted in two Court of Appeal cases.

The important facts of this case were:

1. Heather Ilott was an independent adult child, who was not dependent on her mother;
2. Mrs Jackson left all her estate to three charities to whom she had no particular connection to; and
3. Heather Ilott lived off benefits and was dependent on the state for housing and the majority of her income.

Out of an estate of £500,000, Heather Ilott managed to win a total of £163,000. Originally, and before the final Court of Appeal case, she had only managed to be awarded £50,000.

Before this case, it had often been argued that independent adult children had very little chance in succeeding when making a claim under the 1975 Act; such arguments focused on the principle of testamentary freedom. This is still broadly true because in most cases where an independent adult child is disinherited, that child will:

• Have some private income and/or assets, and

• The deceased will leave their estate to people or charities with whom they had a genuine connection.

The case of Ilott v Mitson was an extreme one – and the result came from a ‘perfect storm’ of circumstances. However, it is too early to tell exactly what impact this case will have in the long term on testamentary freedom and independent adult children.

To summarise, you can’t stop your son being eligible to bring a claim under the 1975 Act – but you can take steps to significantly reduce his prospects of success.

Make sure that your intended beneficiaries are people or charities to whom you have a genuine connection. It’s also advisable to accompany your will with a side letter that clearly explains why you have not provided for your son – and why you want your intended beneficiaries to benefit. It is important to mention that you have attempted reconciliation, but your son continues to refuse to speak to you.

Join the debate by leaving a comment below and if you have any questions about wills and/or divorce related matters, please call us on 0113 246 0055, drop us an e-mail or contact us on @helpwithdivorce.