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Protecting Your Family Inheritance: The Corridor of Uncertainty

22 October 2015

Summer is truly behind us and looking back, what sticks in your memory? Some will think back to England’s Test cricket team regaining the Ashes unexpectedly, few will recall Tuesday 28 July. This was to be the No News Day immediately before the (victorious) Third Test at Edgbaston. In fact (in case it escapes your memory) it was the day that our print, digital and social media became saturated not by match-spoiling rain, but by the case of Ilott v Mitson, in which the Court of Appeal awarded around £163,000 to Heather Ilott, a woman who had been cut out of her mother’s Will.

The public mood was unsympathetic, and it was reflected in the resulting queries we received from our clients, who mostly asked: “How can I make sure my wishes are respected?”

The good news for clients is that, despite suggestions in the media, the Court did not change the law as such, which is based on the Inheritance (Provision for Family and Dependants) Act 1975 which the courts have considered many times over the past 40 years.

We can therefore reassure our clients that this case has not created an unqualified new right for children to claim from the estates of their parents. The law remains that even children who are very needy (like Heather Ilott) will not necessarily win a financial award and that where an estate is left to charities, as was the case here, a child’s claim will not always succeed.

But the Ilott case has provided guidance on the way some aspects of the 1975 Act will be interpreted and (as cricket fans might say) widened the “corridor of uncertainty”. The Court of Appeal emphasised that deciding responsibility for family estrangement is “difficult to quantify”, the question of maintenance for an adult child remains subjective, and if its approach is followed in future, maintenance factors covering a broader time period than before could be taken into account.

For those who have chosen to limit their adult children’s inheritance there are still ways to give effect to their wishes and to narrow the uncertainty. We should not forget that the charities in this case still received two thirds of the deceased’s estate, and if Heather Ilott’s mother had kept clearer records of why she favoured these charities over her daughter the outcome would probably have been different.

The Ilott decision did not therefore change the law as such but it was very widely reported, making people more aware of the risks that their intentions may be examined quite closely by the Courts after their death. If clients are concerned about their own Wills they should take advice from their lawyers to narrow the “corridor of uncertainty” as much as possible. If then their executors have to go out to bat on their behalf, they will have all the protection they need.