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28th July 2015

Can your Will be ignored?? Ilott v Mitson.

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According to various headlines this morning, the answer is yes! Unsurprisingly, the real answer is more complex.

There has been a right since 1975 for courts to overturn all or part of a Will, if certain categories of claimant appealed to them. At the time it was dubbed “the mistresses charter” because the compelling reason for the new law had been cases of mistresses (and wives) who had been disinherited completely and were reliant on state benefits. However, it always applied to children as well, including adult children.

Interestingly, the first headline case in which an adult child (partly) overturned a Will was that of a severely disabled only child of a mulit-millionaire who had been disinherited in favour of charities. Gradually the courts have become more lenient. Today’s headline case of Ilott is the latest example. A mother disinherited her only child after arguing all their lives and finally falling out when the daughter named her 5th child after her paternal grandmother, whom her mother disliked. Although the daughter who claimed, Mrs Ilott, is not disabled, she is on benefits, with 5 children. In the first court case she was awarded £50,000. Many commentators already wondered whether she would have been awarded part of her mother’s £500,000 if her mother had left it to other children, instead of to charities, or if the daughter had been financially independent.

Indeed, in the latest battle (in which the award was increased to £164,000) the judges commented that their ruling had been influenced by the fact that the deceased mother had little connection to the charities to which she had left her money. There was also comment that both mother and daughter had been to blame for failure at reconciliation.

The lesson is not that Wills will be ignored. It is that if you wish to disinherit a close relative then you need advice from a specialist solicitor who will advise on the steps to take to minimise the risk of your Will being overturned – such as good file notes explaining not only why someone is disinherited but also why you have chosen the alternative beneficiary.

The charities, following the wishes of the late mother to fight any such challenge by her daughter, are considering whether to appeal further.

If you wish to discuss a similar problem please contact Carolyn Bagley on 01908 247010 or click here to email Carolyn.