How to ensure your Will rules supreme

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UK JUSTICE

Earlier this month the Supreme Court overturned a decision to increase the sum of money left to a woman by her estranged mother. In this article, Garry Bushell explains how best to ensure your Will, not the Court, rules supreme ...

Melita Jackson had bequeathed her entire £486,000 estate to three animal charities. She had cut off her only child Heather when she'd left home at 17 to live with her boyfriend and future husband Nicholas Ilott.

Attempts at reconciliation failed, and when Melita died in 2004, she had made no provision in her Will for her daughter, by then a mum of five living on benefits with no pension.

Most of her estate was left to the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals.

The protracted dispute that followed has dragged on through the English courts since Melita's death, aged 70, in 2004.

In 2007, the county court awarded Heather £50,000 on the grounds that her mother had acted in an "unreasonable, capricious and harsh" way towards her. Ilott, from Great Munden, Hertfordshire, challenged that and four years later, the court of appeal upped the sum to £143,000 for a house purchase plus £20,000 for living costs. That ruling clearly put legacy income for charities at risk.

On 15th March this year, the Supreme Court over-turned the decision and reverted to the original county's ruling. Heather will now receive £50,000 rather than £163,000.

Heather Ilott, who is now in her 50s, had challenged her mother's Will under the Inheritance Provision for Family and Dependants Act 1975 for "reasonable financial provision" from her estate.

Although she lost the case, Heather will still get more than her mum wanted to leave her and the charities will receive less than she wanted them to have.

The Court of Appeal ruling has been over-turned but the Supreme Court's decision still gives the go-ahead for English courts to effectively re-write an individual's will.

So if a Will can be legally challenged why leave one?

There is actually a simple and generally effective way to back up your last wishes.

When you make your Will you can also write a Letter of Wishes which effectively allows you to speak from beyond the grave and explain why you've cut someone out.

Maybe the relative had become estranged from you, or perhaps you've already provided for them while you were alive. The onus is then on them (the claimant) to show why they feel you had a duty to provide for them.

If they didn't rely on you financially and your Letter of Wishes explains why you've blanked them, then their own lawyer will advise them that their claim isn't strong and that if they go ahead they could face having to pay not only their own legal costs but also those of the people you appointed as Personal Representatives. This could run into thousands.

So why not just explain why you've cut someone out in the Will itself?

Here's why: once it has been processed through Probate, your will becomes a public document and anyone can pay to obtain a copy. It's not a great idea then to make public declarations about why someone has been left out within the Will itself. Making old fall-outs public could wind up someone enough to start a claim. But a Letter of Wishes is private. Only your executors, the potential claimant and his lawyer see it. So common sense tends to rule the day. If no claim is made then no one needs to know what you said.

To sum up: there are no guarantees your Will won't be challenged but there are sensible ways you can back up your decision.

Author: Garry Bushell

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