Do we still have testamentary freedom?

A ruling by the Court of Appeal has awarded a woman £164,000 from her mother’s estate, despite having been excluded from the will.

Heather Ilott was estranged from her mother, Melita Jackson, for all of her adult life. They fell out when Heather eloped with her future husband. Mrs Jackson’s last will (made in 2002) left her £486,000 estate to various animal charities, with no provision for Heather, her only child. She left two side letters with her will explaining why she had not left anything for her daughter and specifically asked her executors to defend any claim that Heather might bring.

Mrs Jackson died in 2004 and over the course of the last 10 years, there have been various hearings and appeals, culminating in the Court of Appeal ruling earlier this week, increasing an earlier award to the equivalent of approximately one third of the estate, despite her mother’s strongly held intention that her daughter should not inherit. It is not yet known whether the Charities will appeal.

Some commentators are saying that this ruling effectively takes away our right to testamentary freedom i.e. our ability to leave our money to whoever we want and brings us more in line with much of Continental Europe, where many countries have a degree of forced heirship. This means that a person can be obliged to leave at least part of their estate to close family members, particularly children, regardless of their age or financial independence – and only have testamentary freedom over the balance of the estate.

Heather’s claim was under the Inheritance (Provision for Family and Dependant’s) Act 1975 (“the 1975 Act”) which confers the right on various categories of people (including a child of the deceased) to make a claim against the estate of someone who has died, domiciled in this country, who does not make reasonable financial provision for them.

This does not mean that the child (including an adult child) has a right to financial provision, just that they have a right to bring a claim.

When a claim is made, the Court must consider various factors in coming to a decision on:

1. Whether to make an award; and if so,
2. How much?

These are some of the factors:

a. The financial needs and resources of the applicant. In this case, Heather had very limited means.
b. The financial needs and resources of any other potential applicants. In this case, there were no others, as Mrs Jackson was a widow with no other children or dependants.
c. The financial needs and resources of beneficiaries named in the Will. In this case, it was accepted that for the Charities, this was a windfall.
d. Size and nature of the estate. The estate was considered sufficient to meet the award sought by Heather.
e. Any other matter, including conduct of the applicant. There was some discussion on this point as mother and daughter had been estranged for many years, with both probably being at fault, but the Court found that this was difficult to quantify and on the facts of the case, they said that the estrangement shouldn’t deprive Heather of an award, or even reduce it.

Under the heading of ‘other matters’, the Court also considered the issue of Mrs Jackson’s strongly expressed wishes that her daughter should not inherit, but said they were not sufficient in this case to exclude an award for Heather, particularly where the Charities were the only other claimants and had ‘no need or expectation’.

Other points noted and referred to by the Court of Appeal:

• It was relevant to take into account that Heather was an adult child who was financially independent of her mother, but it was not an overriding factor.
• Mrs Jackson had no long standing connection with the Charities who benefitted under her Will.
• Mrs Jackson acted in an “unreasonable, capricious and harsh way” towards Heather, who was her only child.
• It is no longer the law that cases involving adult children will only be successful where there are special circumstances or a moral obligation.

So where does that leave the law on testamentary freedom?

Do we still have it?

Perhaps the question is whether we ever had true freedom as while a person can leave their estate as they want, close relatives and those who are financially dependent on them can bring a claim under the 1975 Act, meaning that to some extent, there are restrictions, but in England and Wales, the onus is on the claimant.

For those that want to – it seems that parents can still disinherit their children, but they will have to show a clear connection to those that they want to inherit and have a very good reason for omitting their children.

Is this likely to lead to more challenges by adult children who have been excluded from their parents’ wills – probably!