A time of reflection and planning for the year ahead

The case of Ilott v Mitson has recently highlighted the issue of ‘Testamentary freedom’, simply put, the ability to leave our estate to whomever we choose upon our death.

However, as Ilott v Mitson illustrates, our final wishes can be challenged and overturned.

Heather Ilott was the only daughter of Melita Jackson. Against her mother’s wishes, Heather left home at 17 to live with her boyfriend, who would subsequently become her husband. Mrs Jackson disapproved of the relationship, leading to estrangement between mother and daughter.

Mrs Ilott and her husband went on to have five children, with the family surviving largely on state benefits and tax credits.

Mrs Jackson died in 2004 having made a will completely excluding Mrs Ilott and leaving the vast majority of her estate to three animal charities.

Mrs Ilott made a claim on the estate for reasonable financial provision, principally on the basis that she and her family had very low income and lived on state benefits.

The case was heard by a number of different courts, with five separate hearings over several years, however in the most recent judgment of the Court of Appeal, Mrs Ilott was awarded £163,000 - approximately a third of the total estate.

Although the matter is being challenged in the Supreme Court, it clearly raises concerning questions for many, particularly in light of the fact that Mrs Ilott was not dependent on her mother and had little contact with her for over 25 years.

Most importantly, however, it begs the question of how best to protect your Will from future challenge.

While some disputes settle without going to court, such quarrels inevitably lead to increased costs, delay in administering the estate and harmful repercussions for family relations.

Though it is impossible to entirely eliminate the risk of a dispute post-death, it can be minimised in a number of ways, for example:

l Leaving a letter of wishes explaining your choices, and, importantly, doing so without airing old accusations or grievances;

l Considering a no-contest clause in your will;

l Being up front with family members about your intentions when the will is being made;

l Regularly reviewing and updating your will if and when circumstances change.

While Ilott v Mitson proceeds to the Supreme Court for further judgment, it serves both as an unhappy example of the potential dangers that can lurk down the line, and as a reminder that preparing for the future and protecting your estate, built over a lifetime, is something that needs careful consideration and advice.

As we reach the end of another year this serves as a time of reflection and planning for the year ahead.

Kate Ervine, director, Solicitor, JPH Law, Montrose House, 17/21 Church Street, Portadown, County Armagh, BT62 3LN, 028 38 333 333, [email protected] www.jphlaw.co.uk