No will is watertight

Posted on September 16, 2015 by Eleanor McKenzie
A last will and testament

A contested will has often been a central theme in films and literature. In Charles Dickens’ Bleak House and the case of Jarndyce v Jarndyce, the entire estate was swallowed up by the legal cost of contesting the will, and therein lays the moral of that story. Attempts to discredit the provisions of a will by finding that the person was not “of sound mind” when they wrote it have turned up in afternoon TV dramas from time to time, but it is less often that we hear of a ‘real life’ will being overturned, until the recent case of Heather Ilott and Lady Justice Arden.

A case of coercion

At least, that’s what I thought until I discovered a Guardian article on will disputes from 2010, which suggests that it is actually known as “the new divorce.” In a case that predates the 2015 landmark ruling, Dr Christine Gill successfully challenged her mother’s will, which bequeathed the family home worth £2m to the RSPCA. The high court found that Dr. Gill’s father had pressured the mother into not leaving the property to their daughter.

The Heather Ilott debate

The case of Heather Ilott was one that caused heated debates at dinner parties and divided opinions in offices. The mother, Melita Jackson, had explicitly stated in her will that she didn’t want any of her £500,000 estate to go to Ms Ilott. This case actually dates back to 2004 when Melita Jackson died, and was only resolved in 2015, which gives you a clear idea of just how long and drawn out these disputes can be. Dickens wouldn’t be at all surprised.

The reason Heather Ilott’s mother excluded her daughter from her will is that she had eloped in 1978 with the man who became her husband and father of her five children. This had caused a family falling-out that was never resolved. In addition to writing a will in 2002 to three animal charities, the mother wrote to her lawyers stating that she didn’t see why her daughter should benefit on her death, and that she’d made it clear to her daughter that she wouldn’t receive any inheritance.

Right to reasonable provision

However, Heather Ilott chose not to accept this, and challenged the will under the “right to reasonable provision” clause of the Inheritance Act. She was awarded £50,000 by the court, but then went on to ask for more. She was turned down by the High Court in 2014, but in 2015, Lady Justice Arden reconsidered the appeal and awarded her £164,000 to buy her housing association home and ease her financial situation. She might have won more if it was not for the action of another judge who insisted the award was limited to one third of the estate.

Tiny kitten

The challenge to freedom

The reason that this case has gained so much publicity and become a nationwide talking point is that Lady Justice Arden’s ruling challenges our freedom in writing our wills, and no longer guarantees that our wishes will be followed. In this particular will there is obviously some element of spitefulness involved. However, we don’t know what went on between the mother and daughter.

But, the bigger issue for us is that in the court case, the mother’s connection with the animal charities was called into question. This suggests that if you leave money to animals you’d better be able to show you’re still of sound mind. It also leaves the charities in an awkward position. Should they challenge the ruling? If they don’t appeal now, then any future bequests might be whipped out from under their feet. That’s the issue for charities.

The second issue is that the ruling suggests that the “reasonable provision” clause is becoming a “what I need” clause. It potentially opens doors for any aggrieved family member to challenge a will. Yes, it may be rather harsh to choose an animal charity over your own children, but it is a right we consider a fundamental part of our society. Now, that right is being chipped away at.

Make your wishes clear

Unfortunately, many of us who have experienced the death of parents and grandparents are aware that families behave in the most peculiar ways at a time when logically they should form a closer bond. Law firms will back that up and surveys show that 1 in 10 people get involved in some kind of wrangle over inheritance, even if it doesn’t come to court.

The legal experts say that it is impossible to draft a “bombproof will,” and the best you can do is make your intentions as clear as possible while you’re still alive, including informing charities about your intentions, and leaving detailed instructions with a solicitor. On a lighter note, if you’d like to educate family members about the potential effects of contesting your will, just give them all a copy of Bleak House to read!

by Eleanor McKenzie

Eleanor McKenzie is a Northern Irish writer with a passion for art, literature, and red wine. She's worked at advertising agency JWT, edited a journal for a European social policy think tank and tried to teach teenagers the difference between "there" and "their". Being 50+ has not significantly changed Eleanor's life, although she finds it a handy excuse when she wants to avoid anything too energetic.