Testamentary Freedom

Testamentary Freedom

23 November 2017 Gail Donaldson

It is a sad fact of life today that many people find themselves estranged from one or more of their relatives, and when meeting clients to talk to them about their Wills my colleagues and I regularly face the situation where the person drawing up the Will advises us that they want to cut out one or more family member – often one of their children. 

They are usually then quite dismayed to hear that there is no guarantee that drawing up a Will excluding that child will be completely effective and that the child may be able to make a claim for a share of the Estate under the Inheritance (Provision for Family and Dependants) Act 1975.

In fact claims by disappointed children seeking a share, or a larger share of their parents’ estate appear to be on the rise with the latest figures suggesting a year on year increase of more than 10% of such claims.

Many of these claims have made it all the way to the Courts, the most famous one recently probably being the case of Ilott v Mitson.  This case involved a daughter estranged from her mother for many years.  She ultimately received £50,000 from an estate of £486,000 by way of capitalised maintenance. These cases very much depend on the facts and in this case the daughter lived in fairly straitened financial circumstances.

Another recent interesting case involves the family of Stanley Nahajec.  Mr Nahajec had three children from two marriages and sought to cut them all out of his Will on the basis that he had been estranged from them for many years.  In fact this was entirely his choice and it appeared to be the case that some at least of the children did contact him from time to time but he was generally unwilling to develop a relationship with them. 

One of his children made no claim on his estate, and another made a claim which the Executor settled.  The third child, a daughter from his second marriage struggled financially and often relied on pay day loans to make ends meet.  She was working towards training as a veterinary nurse and made a claim against her father’s estate for provision to assist with this. 

She did have some debt but it was accepted that most of that had arisen as a result of a health scare which meant that she had to reduce her working hours while receiving treatment.  This was all behind her.  At the point of making the claim she worked as a retail assistant on a zero hours contract and did voluntary work at a local veterinary surgeon to obtain experience that would assist her if she were in a position to train as a veterinary nurse.

The Court considered all the circumstances and felt that some financial provision ought to have been made for her by her father and awarded her £30,000 out of an estate of £265,000. 

As mentioned above these cases are all very fact specific.  When meeting clients to draw up Wills in these circumstances we will try to assist with ascertaining the strength of future claims and discussing ways to help our clients achieve their objectives.