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Challenging a Will, What you Need to Know

1st August 2015

Can your Will be ignored?

Will writing has hit the headlines this week as a poverty-stricken daughter, cut out of her Mother’s Will, was victorious in her claim against the estate after the Court of Appeal awarded her a one-third share amounting to £164,000 despite her Will leaving everything between three animal charities.

History of the Case

Heather Ilott’s Mother never forgave her daughter after she eloped with her boyfriend at the age of 17 years. Making it crystal clear that she did not want her daughter to benefit from any part of her estate, she left her money to three animal charities, none of whom she had any great link with.

The Court of Appeal’s decision has made it clear that if a parent wishes to disinherit a child, they will have to explain why and show a connection with those they choose to leave the estate to.

Why can a Will be overridden by the Court?

The laws in England & Wales provide individuals with, what is known as, ‘testamentary freedom’. This means that everyone is free to leave their estate to whomever they choose in their Will. This may appear obvious but in some foreign countries, such as France, the laws require you to leave certain shares of your estate to particular relatives.

Although we have testamentary freedom in England & Wales we also another law called the Inheritance (Provision for Family and Dependants) Act 1975 which acts as a counter balance. This Act enables certain categories of people to bring a claim against someone’s estate if they feel that they have not been left reasonable financial provision under the Will.

Where a claim of this type is made the Court will consider the facts of each case and decide what is reasonable. In the case of Heather Ilott the Court felt that one third of the estate was reasonable when taking into account the particular circumstances.

Does the Court’s decision mean that Wills are no longer important anymore?

Absolutely not. Wills are still as important as ever and remain the only legally recognised way to set out your wishes for how you want your estate to be divided when you pass away. Without a Will in place then your estate is divided in accordance with the Intestacy Rules. This is the law which determines who receives your estate and depends upon which relatives survive you and how much your estate is worth.

In respect of the Ilott case, it’s worth noting that had her mother not made a Will at all then her estranged daughter would have received her mother’s entire state rather than the one-third awarded to her by the Court.

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