A tidal change for disinherited children?

Owing to a surprising outcome in the Court of Appeal this year we can expect to a rise in the number of claims made by adult children who have not been provided for in their parent’s will. Children have always been entitled, under the Inheritance (Provision for Family and Dependants) Act 1975, to make a claim against their parent’s estate if they felt that they hadn’t been reasonably provided for. Reasonable provision is described in the legislation as what ‘would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.

Historically, adult children who are self-sufficient and did not rely upon their parent for maintenance during their lifetime have struggled to show that they need to be provided for upon the parent’s death. It has always been advisable to set out the reasoning for disinheriting a child so that this can be taken into account in any potential claim but, if the child could not show that they were dependent on their deceased parent, it has not been difficult to defend these types of claim.

It has been said that the case in question, Ilott v Mitson, has potentially opened the flood gates for disinherited adult children based on the following facts; Mrs Jackson, the deceased, made a will in 2002 in which she left her entire estate to a number of animal charities to which she had had no connection during her lifetime. Mrs Jackson also left a letter explaining that she had disinherited her only child owing to a bad relationship which resulted from her daughter eloping with her boyfriend in 1978 at the age of 17 years.

The mother and daughter were estranged from this time and the few attempts at reconciliation failed. The daughter, Mrs Ilott, along with her husband and 5 children, lived in a housing association property (which they had the right to buy) and lived using state benefits. Mrs Ilot made a claim against the estate and was awarded a one third share of the estate because the court held that she had not been reasonably provided for. Owing to being ‘poverty stricken’ Mrs Ilott was awarded £164,000.00 in order that she could buy her rented home. Mrs Jackosn was described as being ‘harsh and unreasonable’ and her daughter so poor that she ‘had never had a holiday’. As Mrs Ilott claimed benefits, she did not rely financially upon her mother whilst she was alive and it was a surprise to many that she was awarded anything from the estate.

The court held that Mrs Ilott’s basic financial situation was a key factor in making this decision. It was held that the court had to try and make a fair balance of the claims on the estate and look at the position of Mrs Ilott and the Charities. It was decided that the Charities did not rely on receiving these funds and would have had no expectation of the same.

The ruling goes to show that an adult child can be successful in challenging the will of their parent and some have viewed this result as an assault on testamentary freedom. However, we will need to be careful when managing potential client’s expectations going forward as this decision was fact specific and the court may not have reached the same conclusion has Mrs Ilott been in a better financial position.

For any parents wishing to disinherit their children, be careful to clearly set out the reason for this decision and to provide information detailing the connection to your chosen beneficiaries and the basis for this choice

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