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When is it “safe” to exclude family from your Will?

An initially controversial story appeared in the papers this week (Daily Mail).  Mrs Ilott who had been estranged from her mother, Mrs Jackson, for over 30 years except for a brief trial reunion over 10 years ago successfully claimed a share of her mother’s estate, despite Mrs Jackson having a  valid will which left everything, valued at over £480,000, to charity.

At the time of making her Will, Mrs Jackson was very clear about her desire to leave her daughter nothing, and even left a letter with her will setting out her reasons, perhaps in the hope that this would prevent her daughter claiming a share.  At no point was Mrs Jackson’s mental state questioned, nor was the validity of the Will. 

At first glance, this looks to be hugely unfair.  Why should Mrs Ilott receive money from a lady she appears to have hardly known?  Why were her mother’s clear and understandable wishes set aside? 

A closer look at the facts and the law may provide an answer.  Many countries around the world have a regime of forced inheritance.  Parents simply cannot disinherit their children, no matter how much they may want to. This is not the case in England and Wales, but, to compensate, the law does allow certain individuals who have been disinherited, or who have received too little to make a claim for more. 

Children, even adult children, are entitled to claim. They might not succeed, but they have the right to try.  The likelihood of success is based on a number of factors, not least the needs of the claimant.  Put simply, if a wealthy child and a poor child of the same person launch identical claims, the poorer child may well have more chance of success. 

Again, this doesn’t seem fair.  But is it fair to ask the taxpayer to support someone when there is family money available.  Do a parent’s obligations stop, just because you, sadly, don’t get along with your child?  A court will look at all the evidence presented, and generally reach a just solution. 

Could this have been prevented?  Maybe.  Mrs Jackson thought she had done all she could to show why she had cut her daughter out of her Will.  Sadly that wasn’t enough.  Perhaps however, the litigation could have been avoided if she had drafted her Will differently.  The use of a trust might have been appropriate.  Complicated family circumstances sometimes call for complicated Wills.  It is important, not just to take advice, but to take advice from a specialist, such as a member of STEP, the Society of Trust and Estates Practitioners.

All our Wills are drafted by experts. We pride ourselves on taking the time to get to know our clients, and to look at their family circumstances, to ensure that we can address all possible risks, before it’s too late.

Fiona Dodd