The recent press coverage over the Court of Appeal ruling to award Melita Jackson’s Daughter £164,000, despite being left out of the Will, has caused some mixed responses.
Peter Hamilton, Managing Director & Head of Wills, Trusts and Probate at Tinsdills Solicitors commented:
“The ability to make a Will in whatever terms the testator wishes has always been subject to checks and balances. The ruling is consistent with the law under the Inheritance (Provision for Family and Dependants) Act 1975 and will come as no great surprise to those who are familiar with the Act and its implementation through case law.
However, the strength of reaction to the decision is indicative of the range of opinion on the issue of testamentary freedom, and it will certainly spark an emotive debate about a testator’s ability to reflect his feelings through the terms of his will, and the extent to which those terms should be viewed as absolute.
This decision doesn’t necessarily break new ground, but it may well serve to re-focus the attention of testators, claimants and their respective advisers to ensure that they achieve the desired outcome.”
Further press coverage on this case can be found:
Source: Law Gazette, 28th July 2015
After a court battle lasting almost a decade, the court overrode Melita Jackson’s will, which left her £500,000 estate to animal charities and expressly stated she did not want her daughter to receive anything.
The appeal court granted Heather Ilott a third of her mother’s estate on the grounds that IIott had not been given ‘reasonable financial provision’ in the Will.
Lady Justice Arden found that otherwise Ilott would face poverty, and her strained circumstances meant that she had never had a holiday, had difficulty affording food for her five children, and could only afford old or second-hand clothes.
Arden said that Ilott’s resources, which included an annual household income of under £7,000 and benefits of around £13,000 ‘are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who has been living independently for so many years’.
She also noted that Jackson had no connection with the charities she had left her money to.
Source: funsdraising.co.uk – 28th July 2015
To challenge or not to challenge
Contested Wills are not uncommon and some charities are experienced in defending the charitable expressed wishes of their supporters as set out in a legal document. Charity trustees are also obliged under law to help ensure their charity maximises its income.
However, this court decision has been viewed as a possible landmark judgement that could influence future contested wills and indeed encourage other family members to challenge the provisions of Wills. Given the decline of the nuclear family and rise of blended families, it is possible that more people will choose to challenge Wills.
In addition, the decision comes at a sensitive time, following the criticism of some charity fundraising methods by some newspapers, following the death of poppy seller Olive Cooke and the attempts to link it to direct marketing tactics, and the investigation into some alleged telephone fundraising methods. Although it is the duty of charities to argue their case when they are promised money by a supporter, the prospect of being seen to challenge family members, even if they have been explicitly disinherited, might be presented by some as further evidence of ‘mercenary’ charities.
This should be easy to counter since many charity legacy communications explicitly encourage supporters to make provision in their Will for their family first and charities second.
Alex McDowell, Chair of Remember a Charity, the charity legacy consortium, expressed his concern about the potential impact of the ruling on charities.
“The right of anyone to contest a Will, wherever there are grounds to do so, must be respected, but this case draws into question what has always been a legal right of the testator to practice free will in how they divide their estate. This could result in fewer people choosing to support their favourite causes through their Will or increased costs for charities as a result of a growing number of claims they are duty bound to defend.”
Pointing out that many legacies come from individuals who have no identifiable link with the beneficiary charity, he added:
“For most charities, a significant number of gifts in Wills come from supporters for whom there is no demonstrable link to the charity. However, this does NOT mean the individual did not have a connection or feel passionate about the cause. Issues such as patient or service user confidentiality may mean there could be deeply personal links to a charity that are unknown to the fundraising team or must not be made public. The link may also be unknown simply because it pre-dates a charity’s modern record keeping systems or institutional memory”.
He defended the freedom of the supporter to choose whom to benefit without necessarily expressing why. He added:
“It’s vital that an individual can choose to keep their motivations and personal experiences private without that right putting their testamentary freedom at risk.”