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Last year, that Mrs Ilott, an estranged daughter ‘written out’ of her mother’s Will, was awarded £164,000 from her mother’s estate made headlines. The English case concerned the Will of Mrs Jackson who died in 2004. As noted in a previous blog (available to read here), Mrs Jackson had left a majority of her estate to charities, expressly instructing her executors to defend any challenge to her Will brought by her daughter, explaining in a letter that: ‘I have made it clear to my daughter during her lifetime that she can expect no inheritance from me when I die’.

That a court could overturn someone’s wishes, so clearly expressed, outraged some and was welcomed by others. Although much consternation was based on a misunderstanding of the legislation in England & Wales (which allows a Will or intestacy rules to be modified to make reasonable financial provision for surviving close family members), the case raised the important question of how certain we can be that the law will ensure our wishes are respected when we die.

The UK Supreme Court has now ruled on the issue and brought some clarity to the position south of the border. In a decision that has seen Mrs Ilott’s award reduced to £50,000, the Court has reaffirmed the importance of the freedom of individuals to dispose of their assets by Will after death in whatever manner they wish (also known as testamentary freedom).

A case raising ‘some profound questions’

In her supplementary judgment, Lady Hale noted that the case raised ‘some profound questions’ that attract a ‘wide range of public opinion about the circumstances in which adult descendants ought or ought not to be able to make a claim on an estate which would otherwise go elsewhere’. She concluded that requiring the courts to make such a value judgment, i.e. whether an adult child is deserving or undeserving of reasonable maintenance, in the absence of express guidance meant that the present law in England & Wales was in an unsatisfactory state. However, as the court held that greater weight should be given to testamentary freedom, it followed that any award following a successful claim on an estate should be calculated restrictively.

In its main judgment, the Court emphasised that the relevant legislation (the Inheritance (Provision for Family and Dependants) Act 1975) demonstrated the significance attached by English law to testamentary freedom by limiting the concept of ‘reasonable financial provision’, i.e. how much can be claimed by a close family member out of an estate, to maintenance.

Although ‘maintenance’ is broad, it does not ‘extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living’. For example, a married adult son on a good income from two businesses, who lived with his family in comfortable circumstances, could not claim that it would be reasonable provision for his maintenance to pay off his mortgage (In re Jennings, deceased [1994] Ch 286); nor could an adult son who received a sizeable gift from the deceased while still alive then claim for a capital sum to meet the capital transfer tax payable on the gift (In re Dennis, deceased [1981] 2 All ER 140).

When calculating the level of maintenance to be provided, it is necessary to make an assessment based on the particular facts of the case. As a general guide, the Court emphasised that maintenance is the provision of income and not capital, however, how much could be considered maintenance was not limited to subsistence, nor did it have to be provided by way of periodical payments such as under a trust. Whether or not a lump sum would be appropriate again depends on the facts, such as whether it is needed to buy a car to get to work. Housing could, in some circumstances, be provided by way of maintenance, but usually not by way of an outright lump sum but by, for example, a life interest in a trust fund.

Overturning Wills: The position in Scotland

From the outset, it is important to point out that the law relating to Wills is different in Scotland and in England & Wales. However, the Supreme Court’s recent ruling accords with the great deal of importance Scots law places on the principle that an individual should be able to determine how their property is distributed after they pass away, and that this should be free from interference or interruption by any other party. The Scots courts are respectful of this principle and highly unlikely to entertain a challenge to a Will that is not based on accepted legal rules.

While it is true that it is difficult to challenge a Will, the law does provide for some avenues on which a legal challenge can be based. These are on the basis of incapacity, facility and circumvention or undue influence. These limited grounds reflect the underlying concern that any challenge be based on there being a material defect with the Will, i.e. the person drafting it was not able to give effect to their intentions. A Will cannot be challenged simply because its terms are felt to be subjectively unfair. If a Will is to be successfully challenged in Scotland, it must therefore be based on very precise grounds backed up with very clear evidence.

How a Will prescribes the distribution of assets may also be challenged in limited circumstances. This is a connected but distinct issue whereby surviving spouses, civil partners and children can claim certain legal rights that allow them to forfeit any benefit left in a Will. If you would like to know more about challenging a Will in Scotland, or challenging the distribution of assets in a Will, you can find more information on our site here and here, or please contact us.

Wilson & Fish – Contentious Will & Probate Specialists in Scotland

Wilson & Fish is a specialist provider of private client legal advice, specifically on the law as it applies to Wills and executries in Scotland. Our team are experienced in dealing with the technicalities of executry law, and will be able to review your situation and give an objective assessment of your concerns regarding the validity of a loved one’s Will. Contact us today and speak to one of our team.


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