Posted On / 15.09.2015

When Can Grown Up Children Challenge a Will?

When you make a Will In England & Wales, you can normally leave your estate to whoever you wish: your spouse, your kids, your friend Alec, the Cats’ Home.  

However there are laws in place which enable spouses, children and other financial dependents to make a claim against an estate if they have been left out of the Will or think they have been given too little. We have just had the Court of Appeal decision in Jackson v Ilott, and although it has not changed the law it has certainly made us sit up and take notice.  

Under the ruling, Mrs Ilott has been awarded £164,000 following a decade-long legal fight which culminated in judges ultimately rewriting her late mother’s Will.

The mother, Melita Jackson, had disapproved of her only daughter running away with a man when she was 17, and the two women became estranged. As a result, she excluded her daughter from her Will and instead left her estate to three animal charities.  She left a letter with her Will explaining why she excluded her daughter and why she had chosen the three charities more or less at random.   

By the time of the mother’s death, the daughter had married the man she had run away with and had gone on to have five children. Although they had been together for decades, Mrs Jackson never got over it.  The Court of Appeal has decided that she had unreasonably excluded the daughter Mrs Ilott and has awarded her one third of the estate. 

The Court of Appeal has highlighted the fact that in some cases, Wills can be challenged. Certain categories of family member can go to court and say that they have not received a reasonable share under the Will.  Wills cannot always be regarded as cast iron and safe from attack.

The law in this area has not been altered by this decision but it has changed the emphasis. Professional advisers will need to ask those awkward questions about past family breakdowns.  Not only will they ask why their client is excluding X, they will need to ask why A, B & C are inheriting more than X or instead of X.  The lawyer’s file may be disclosed after their client has died, and at that stage careful explanations and justifications in the file will be crucially important.  

This highlights the need to ensure you receive professional advice when considering how you are going to leave your estate and that you discuss with your lawyer whether you are going to stick to the decisions in your Will and, if so, how you can best ensure that those decisions stand up to challenge after you have gone.

Please contact Naomi Dyer on 01935 811307 or Naomi.dyer@battens.co.uk for more details about how we can help you ensure your Will reflects your wishes or Peter Livingstone on 01935 846235 or peter.livingstone@battens.co.uk to challenge a Will which you consider unjust.