After the case of the disinherited daughter, is a will worth the paper it's written on?

A British legal case in which disinherited daughter was awarded £164,000 from her late mother’s estate has led to wild speculation about the future of wills. Melita Jackson had become estranged from her daughter Heather Ilott before her death. She ultimately cut her daughter out of her will and left all her money to various animal charities.

This has led many to wonder if their own legacies could be changed after their death. If Jackson was not allowed to leave her money to the organisations she had specifically named, is any will worth the paper it’s written on?

In a legal sense, the world has not really shifted on its axis by the decision about Jackson’s will, because legislation has existed for decades covering the situation Heather Ilott found herself in. People considering drafting a will don’t need to fear the outcome of this case. Everyone should calm down. Justice was important here – and I believe justice won.

A case of nothing new

The Court of Appeal’s decision in this case was originally handed down in 2011. It stated that Ilott ought to have been provided for in her mother’s will. The more recent decisions in 2013 and 2015 related to how much she should actually have. It has been decided that she should receive £143,000 to buy her house with the option to claim another £20,000.

Legally speaking, the facts surrounding Ilott’s claim to a share in her mother’s estate were so specific and detailed that it seems unlikely to have a significant effect on other people’s wills.

The facts turned upon Ilott’s various and necessary state benefit claims. She does not have a pension and her long-term partner was drawing only a small salary in a less than stable job. She and her family needed the money to secure even the barest of existences in what the court referred to as “straitened circumstances”.

Decision was fair under the law.Colin Smith, CC BY

On this basis, the case fits neatly into ongoing media narratives both positive and negative surrounding state benefit claimants, as well as the more recent decision of the Conservative government to sell off social housing. This may be why it has garnered so much media attention – but that shouldn’t lead to anxiety or confusion over where the law stands in relation to wills.

The matter began with, and is structured around, legislation designed for exactly this type of situation. The Inheritance (Provision for Family and Dependents) Act gives the court wide powers to make reasonable provision for family members out of a deceased person’s will.

The Act came into force in 1975 following a Law Commission report into precisely the type of issues that Ilott’s case raises. It looks at which circumstances mean someone not named in a will should be provided for.

While some dubbed it the mistress' charter, because it made it theoretically possible for secret lovers to make claims on a will, the legislation was felt to be progressive. It offered hope to people who felt they had been left at a disadvantage could have some recourse.

But even before the 1975 Act, it was possible to adjust wills that failed, for whatever reason, to provide for people that might or ought otherwise to benefit from a share in an estate.

Special circumstances

The key to a successful application is arguing that it would be reasonable to expect provision to be made for you in a will – that is, one that falls outside of the express intentions of the testator in their will.

In Ilott’s case her financial position was scrutinised to this end, including the impact any award might have on her ongoing ability to claim state benefits. Indeed, in the 2011 judgement, it was decided that just because the state makes provision for financial hardship doesn’t make it unreasonable to expect a parent to make provisions for an adult child.

It was determined at appeal that the fact that Ilott and her husband had made a life for themselves without contact with or the expectation of any financial support from her mother should not stop her mother from considering the needs of her daughter via her will.

Financial need was important to this case. But simply asking the court for money from a desceased’s estate when you believe you deserve it or haven’t been given enough to satisfy your needs won’t work, as a case decided along similar lines in 2013 revealed. Ilott’s circumstances, while not rare in modern Britain, were nevertheless what the court considered “necessitous” enough to warrant the claim.

The close examination of Ilott’s lifestyle, among other things, demonstrates the continuation of an important, more holistic approach to settling private law disputes in recent years. This approach maybe time-consuming, but it is also a better, more equitable form of justice – even if the charities that lost out in this case see it differently.

Robert Herian receives funding from AHRC.