Contesting a will: What are my options if I'm left out of a will?

The issue of contested wills, and people being ‘disinherited’ from a parent’s will, has hit the headlines again after a long-running legal case was finally decided by a High Court judge.

The case of Ilot v Mitson, an estranged daughter and her deceased mother, has come to prominence again after the judge decided that the original award of £50,000, made to Ms Ilot in 2007, should be increased to £164,000.

While the laws surrounding contested wills have long been established, the case once again demonstrates the importance of making a will and the ability of family members who have been left out of a will to challenge it.

Ed Stanley, an expert in contentious wills and probate at Harrison Drury, looks at the Ilot v Mitson case and its lessons for those seeking to contest a will.

What’s the background to the case?

The deceased, Melita Jackson, died in 2006 leaving a net estate of £486,000. Her daughter Heather Ilott was the only child of her marriage, which ended when Ms Ilott’s father died in an accident. Ms Ilott began a relationship of which her mother disapproved and in 1977 eloped with her future husband whom she married in 1983. Ms Ilott was effectively estranged from her mother despite the daughter’s attempts at reconciliation. In 2002 her mother made a will excluding her daughter entirely. At the same time via her solicitor she wrote a letter explaining her reasons for doing so. Her 2002 will split her estate among three charities – Blue Cross, RSPB and RSPCA – with whom hitherto she had little connection. Ms Ilott was a full time mother to five children she raised with her husband and had not worked since 1984. The family’s income derived mostly from state benefits and they did not own their own home. On her mother’s death Ms Ilott brought a claim that provision should be made for her from her mother’s estate under the statutory authority of the Inheritance (Provision for Family and Dependants) Act 1975.

Why is it making the news again?

This case first came before the courts in 2007 and after a series of judgements the Court of Appeal held unanimously in 2011 that the original decision in 2007 to make an award in favour of Ms Ilott was correct. The matter was then referred back to a judge of the High Court to determine how much provision should be made for Ms Ilott from her late mother’s estate. The court has now decided that the original award made in 2007 – of £50,000 – should be increased to a level it believes constitutes more reasonable provision, that is the sum of £164,000, in effect one third of the estate. So it is the scale of the award and not the reasons behind the award being made in the first place that have brought this case back to prominence.

Why is this case described as a “landmark case”?

The media has described this as a landmark case, because many are claiming that the ruling could significantly weaken people’s right to leave money to those they want to inherit it. And so it might. In reality it is not a “landmark case” insofar as a definition of “landmark” is something which has radically altered the law from one position to another. Since the 1975 Act adult children have always been able to make a claim in circumstances where they have been excluded from a will or have not had reasonable provision made for them, either by the will or by intestacy. Over the years the courts have viewed adult children claims with varying degrees of enthusiasm. And the 1975 Act has always stated that the conduct of the testator – the person making the will – along with others would be taken into account. So there is nothing new in Ilott v Mitson. What it has done is to concentrate legal practitioners’ minds upon principles already long established, namely i) the basic premise in this country of testamentary freedom is something that is not completely protected even where adult children of the deceased are concerned; ii) adult children who are able to support themselves as well as those under 18 can apply and iii) the conduct of all the parties including the deceased will be taken into account.

What does it mean for those making a will?

Firstly this case emphasises the importance of making a will even though the provisions in the will were altered by the court. If someone dies without making a will then the ‘intestacy’ rules apply and they too can be challenged under the 1975 Act by someone who is excluded from them or for whom the provision can be said to be “unreasonable”. Making a will confers at least a degree of control over your estate.

When making a will it is important to consider all of those to whom it could be said that you owe a moral obligation. In the past it has been presumed that if a person making a will excludes a family member from the will or, as can happen, their own spouse, or makes little provision for them then if a letter is made accompanying the will setting out their reasons for doing so then the person excluded might struggle to bring a claim.

The ruling in Ilott v Mitson does not mean that any child excluded has an automatic right to succeed on a claim, but it does mean that decisions to exclude children, spouses and other family members or dependents will be scrutinised very carefully and more sympathetically and if the decision is unreasonable then it could well be reversed by way of the court making an order for provision from the estate for the excluded party.

A decision to include in the will a beneficiary with whom there might appear to be little or no connection with the testator should be explained and justified in a note accompanying the will. However, even this is not a guarantee that the estate will be distributed in accordance with the provisions made in the will. In many countries the law stipulates how someone’s estate or at least part of the estate has to be given away and the will cannot override those statutory provisions. This is known as ‘forced heirship’. It is widely assumed that no “forced heirship” rules apply in this country. This is true only insofar as there are no rules that say what you can and cannot put in your will. However, there are rules by virtue of the 1975 Act which mean that post-death, the distribution of an estate can effectively be re-written by a court inevitably against the wishes of the person leaving the estate.

What are my options if I feel like I have been left out of the will of a parent or close family member?

There is a wide range of categories of prospective claimants under the 1975 Act, but nonetheless it is restricted to certain classes of people. Chiefly, but by no means exclusively, these tend to be the children or spouse of the deceased. Each case turns on its own facts and so if you have been left out of a will, or if insufficient provision has been made for you by a will, or indeed by the intestacy rules, then you should seek immediate advice upon whether or not you qualify as a claimant under the 1975 Act and if there are merits in such a claim. If there is such a claim then the executors under the will, or those appointed under an intestacy, will be notified and in effect the administration of the estate will be suspended other than to preserve estate assets pending the resolution of the claim. The claim is not against the estate, but actually against the beneficiaries under the will or intestacy as it is their share which will be diminished if the claim is successful. Information concerning the estate needs to be obtained and the executors (even though they may be beneficiaries) must co-operate in disclosing information to genuine claimants. The law encourages parties to resolve their differences without recourse to litigation and only as a last resort can a claim be brought in the courts.

Who decides if I am entitled to make a claim against the money received by beneficiaries?

If agreement can be reached then this can be recorded in a court order, a binding legal contract or a Deed of Variation. If the claimant is a minor child (i.e. under the age of 18) the court will have to sanction the agreement (an infant settlement approval hearing will be required). If no agreement is reached then ultimately a judge will make the decision as to whether or not the person claiming is so entitled and, if so, how much if anything that person should receive by way of a redistribution of the estate. This can only occur after a trial when the judge will hear the evidence of all of the interested parties. The personal representatives of the estate will be bound by any order the court makes.

How long might it take for a claim to be heard?

For deaths occurring after October 1, 2014 a claim can be brought at any time against the estate, subject to a time limit: six months following the date of the issue of the Grant of Probate. There are so many factors which can affect how long it takes, for example, the actual administration of the estate itself. If it is a complicated estate with many assets, some of which might be abroad, it may take some time to actually establish the true value of the estate, without which no claim can proceed. Other factors can include how vigorously resisted the claim is and the number of witnesses that have to give evidence. It is not unusual for a claim to take 24 months. Some settle sooner than that, others go beyond.

I am an adult child and my last surviving parent has died leaving me nothing in the will. I am self-sufficient. Am I able to make a claim?

Although each case turns on its own facts, being self-sufficient may not of itself prevent you from making a claim. The court will want to consider many factors including the conduct of your parents towards you and others in their lifetime. The court will also wish to consider the financial circumstances of all of the parties to the claim – that is yourself and the beneficiaries. Other matters taken into account include the size of the estate. The position is somewhat different for disabled adult children.

What orders can a court make?

The court has freedom to divide the estate as it sees fit. It has power to order that any assets previously belonging to a deceased, but which do not fall into the estate, can in certain circumstances be brought back into the estate in order to satisfy a 1975 Act claim. Lump sum payments, regular payments of maintenance, the transfer of property, the creation of a life interest in a house or in cash; these are but a few of the many options available to a court.

Ed Stanley is an expert in contentious wills and probate. He has been involved in many cases across the country, representing adult and infant children and spouses who have been excluded from a deceased’s estate, or for whom insufficient provision has been made. 

If you would like more information or advice on contesting a will or an estate, please contact Ed on 01772 258321 for a discussion as to how we can help you and the pricing options available. Unfortunately we cannot give free advice. 

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