Is there still a point in making a will?

This is a question that has been on many people's minds since the announcement last week of the Court of Appeal decision concerning Mrs Jackson's attempt to cut her only daughter, Heather Ilott, out of her will.

Most of us read in the press that the mother consulted a solicitor and prepared a clearly-worded will and explanatory side letter leaving all her estate to animal charities. She set out the reasons why she had left nothing to her estranged daughter. The will was free from technical faults and Mrs Jackson had full mental capacity. So why did the Court set aside her wishes and divert around a third of her estate to her daughter? How could they do this?

In England and Wales, we have the concept of "testamentary freedom". This means that we can do exactly what we want with our worldly goods when we prepare a will. Of course we need to be of sound mind and comply with the technical requirements to create a valid will. But apart from that, we can – on the face of it – dispose of our assets as we wish.

This is not the same in Scotland, France, Germany, Austria… the list goes on. Each of these countries has its own version of "forced heirship". This means that certain people (usually spouses and children) have overriding legal rights to be left a portion of the estate. The parent making a will cannot ignore these rights, although some countries allow a get-out: children in Hungary could find themselves validly cut out of the will because of their "rude ungratefulness".

Although England and Wales has no concept akin to forced heirship, we do have a safety net for close family and those we provide for. This is the Inheritance (Provision for Family and Dependants) Act 1975 - the Act that Heather Ilott used as a basis for making a claim against her mother's estate. Under this Act, she had to show that the will failed to make "reasonable provision for her maintenance". Another way of looking at it is to say that she had to show that it was unreasonable of her mother to leave her out of the will. If that is proven, the court then has to decide what provision it would be reasonable for her mother to have left her for her maintenance.

In this case, there were a number of reasons why the various courts involved with this case thought that it merited an award for the daughter. The District Judge in the original hearing described Mrs Jackson's behaviour as "unreasonable, capricious and harsh". Although the two were estranged, both mother and daughter bore responsibility for the continuing stand-off although the Court of Appeal did suggest that it might not have been anyone's particular fault, but possibly arose out of Mrs Jackson's inability to make lasting relationships with other people. Heather Ilott was of course the only child of the marriage, and lived in straitened circumstances. In effect, she and her family "scraped by" on meagre income supplemented by state benefits. The charities of course were in circumstances that could not be compared with those of the daughter. In addition, those charities were not organisations the mother had any connection with during her lifetime.

All cases under the Act are decided on the basis of the legislation and according to the facts of the individual case. For that reason, it is very difficult to pull out new reasoning which will apply to other cases – simply because the combination of facts will differ in each case. I am not convinced this particular case lays down new principles which will make it easier for a child to overturn a parent's will. The circumstances of this case are – thankfully – not commonplace, and I believe the Court correctly applied the existing law.

The lesson from this case is that wills spitefully cutting out an adult family member are at risk where the object of that spite is unable to maintain a reasonable standard of living and there are no other beneficiaries in need. But if you take care to prepare a considered set of wishes with a full explanation of the reasons, perhaps favouring of one helpful child over and unhelpful one (rather than giving the whole estate to a "stranger") and possibly making some provision for the less favoured offspring (rather then nothing at all), then these factors are all likely to count in favour of the will being upheld.

For the sake of completeness, it is worth stating what any private client solicitor would consider to be the obvious: the person making the will must have the necessary "testamentary" capacity, the will should be professionally drawn, the side letter must clearly set out a relevant and compelling explanation of the testator’s decision, the advice recorded, and the documentation prepared and executed in a technically faultless way. But then I would say that, wouldn't I!

Contact: Jill MacMahon