Could your wishes specified in your will be overruled by the Court?
Thursday 30th July 2015
The recent Court of Appeal case which saw Mrs Ilott win £164,000 from her mother’s estate despite being written out of her will, has attracted great media attention and rightly so.
Whilst some headlines report that this case is ground breaking and undermines the reasons for making a will, in our view, this is going too far.
The late Mrs Jackson fell out with her only daughter when she decided to elope and get married at the age of 17. When Mrs Jackson died in 2004, having never reconciled with her daughter, she had left her entire estate (all £489,000 of it) to three charities. She instructed her Executors to fight any claim brought by her daughter.
It has been reported that Mrs Ilott (now aged 54) has five children, is on benefits, has no pension, and was living in rented social housing accommodation.
Mrs Ilott’s claim that her mother had failed to make reasonable financial provision for her, brought under the Inheritance (provision for Family and Dependants) Act 1975 was successful. The judges were influenced by the fact that Mrs llott had “real financial need” and also that Mrs Jackson had little association with the charities who she wished to benefit from her estate.
Unfortunately, family relationships sometimes break down and in such circumstances, people do feel that they should have the right to exclude a particular family member from benefitting if they so wish.
Whilst this decision does seems to undermine that very principle, it has to be said that the judges’ reasoning is very much dependent on the specific facts. In assessing a claim under the 1975 Act, the court has to decide whether the provision made in a will is “reasonable” with particular regard to the needs and resources of the parties. In this case, the claimant was in specific financial need and the charities were not. The award was limited to a level that would enable Mrs Ilott to buy a property and to have a small cash sum that would not affect her state benefits.'
Generally speaking, adult children not in financial need will still face an uphill battle in bringing a successful claim.
For those who anticipate potential disputes in respect of their own estates, thought should also be given to the steps that could be taken to make a will as robust as possible. Setting out a detailed explanation of what is being done, and why, explaining your connection to those you intend to benefit, and perhaps even giving a degree of flexibility to your Executors to determine how part of your estate is distributed could mitigate the risks.
For further information on the case, please see http://www.brabners.com/blogs/dispute-resolution/woman-omitted-her-mother-will-wins-164k-inheritance
If you would like more information about estate planning and/or wish to create a new Will or update your existing one, please contact Richard Bate or your usual Brabners contact.
Author: Hayley Watson
The issues with appointing Lay Executors
Tuesday 7th October 2014
Considering the content of your Will can sometimes be a difficult and daunting decision and choosing who to appoint as executors can often get overlooked.
An executor should be someone you can trust to carry out the wishes of your Will and ensure your loved ones are financially secure when you have passed away. This could be a relative/friend or a professional such as a solicitor.
Lay executors do not get paid for carrying out their duties (however, the testator could have a pecuniary legacy in respect of the executor duties if they wish) and this tends to be the main reason why lay executors are appointed in favour of professionals.
However, there have been a number of claims in respect of fraudulent distributions by a lay executor in more recent times; 368 claims in respect of breach of fiduciary duty were lodged in 2013 alone. Other claims include theft of assets and favouring certain beneficiaries over other beneficiaries.
Often family members who are also beneficiaries are appointed as executors and this could give rise to potential dispute and friction which in turn, could lead to the executor not acting in the accordance of your wishes.
It should also be noted that lay executors can be personally liable for administering an estate incorrectly. The beneficiaries for instance could bring a claim against the lay executor if they have delayed matters and as a result of the value of the residuary estate is reduced. Further any money due to the HMRC which has been incorrectly calculated could result in the lay executor becoming personally liable.
Professional executors are independent, regulated and are covered by indemnity insurance. They have a duty to carry out the wishes of the Will and are experienced in dealing with the administration process making the process quicker.
Professionals do charge for the service of acting as an executor, however, long term it is likely to be more cost effective than a claim brought against the lay executor who mishandles your estate.
Author: Adrian Rogers
Young British adults encouraged to make a will
Wednesday 21st May 2014
Last week the Law Society published a press release reporting that almost two out of three adults in Britain have not made a will. It advises those who have not done so, to act now.
The Law Society last week reported that research from Dying Matters Coalition revealed that only 36% of British adults say they have written a will, while 83% have said they are uncomfortable discussing their dying wishes.
People who die without a will are said to die intestate and the law then imposes arbitrary rules on who gets what leaving those excluded to bring court action as the only way to claim what they think they are due.
Those with children or dependents need to ensure that wishes relating to the provision of care are clear. For unmarried couples and those who wish to benefit charity, friends and more distant relatives, as opposed to next of kin, making a will is the only way to ensure that assets pass the right way on death.
Attitudes ought to change. Making a will should not be seen as something you do towards the end of your life. Ideally it should be something which is started as a young adult and then seen as an ongoing process which is reviewed regularly, like going for a check-up, to ensure that your will is up to date and does what is needed.
Author: Richard Bate
Supreme Court decision makes it easier to fix defective wills
Tuesday 11th February 2014
A recent Supreme Court decision reverses the earlier decision of the Court of Appeal that when couples sign each others’ wills by mistake the Court is powerless to fix that mistake.
Until this decision that mistake would have meant any earlier wills would have applied or, if there were no wills, your estate would be distributed according to the intestacy rules. The people you had intended to benefit may not have done so.
The Court can potentially rectify clerical errors or failures by solicitors to understand instructions that were given to them when preparing wills. Not all errors can be rectified but the recent ruling suggests that it will now be easier to succeed in claims to rectify wills where there has been a clerical error.
Although this decision will be welcomed by solicitors and those affected by defective wills the costs of issuing proceedings to rectify a will can be significant. It is always preferable to instruct a solicitor to make sure a will is properly drafted and executed, than risk leaving your intended beneficiaries with the risk of having to pursue costly court proceedings.
Author: Simon Morris