Disinheritance – be careful of cutting people out of your Will

January 16th, 2020

The recent case of Colin Johnston v Lady Natalie Wackett has acted as a reminder of how the funds within an estate can be diminished when a claim is made against it. Not just by the decision made by a court judge but also with the costs and time in progressing such a claim.

Mr Johnston had two sons, Gary who predeceased him and Colin. The Will left the entire estate to Gary’s daughter Lady Natalie – Colin received nothing. Colin therefore made a claim and the judge has recently agreed for £125,000 to benefit Colin out of an estate valued in the region of £2.4 million (although after expenses worth £1.4 million).

In coming to a decision, the judge considered evidence as far back as 1976 which showed how long ago Mr Johnston had made the decision to disfavour Colin for Gary.

No time limit on claims

The high profile saga of Ilott vs Miston arose out of a claim for reasonable provision under the Inheritance (Provision for Family and Dependents) Act which was brought against the estate of Mrs Melita Jackson by her daughter, Mrs Heather Ilott, who had been estranged from her mother for 26 years before her death.

Mrs Jackson passed away in 2004 and left her Will with a letter that had been written two years previously, explaining why she had disinherited her daughter and how she preferred to leave almost all of her estate to The Blue Cross, the Royal Society for the Protection of Birds (RSPB) and the Royal Society for the Prevention of Cruelty to Animals (RSPCA).

The Court of Appeal overruled the judge’s decision and said Mrs Ilott was entitled to a share of the money and awarded her £50,000. Following her first award, she returned to court to argue for a larger share, she was then awarded £164,000 to purchase her housing association property and supplement her income from the state. At this point, the charities decided to step in and won their Supreme Court challenge, resulting in Mrs Ilott’s sum being reduced to the original £50,000. The whole process took over 10 years.

Guidance on Provision for Family and Dependants (IPFD) Act 1975

There has been various disinheritance cases over the years and little guidance provided by the courts on how they weigh up claims against an estate. In addition to this, there has been nothing mentioned about awards being formulated in a beneficial or tax-efficient way for the claimant.

It is for this reason that serious consideration should always be given to the Inheritance Provision for Family and Dependants (IPFD) Act 1975 when making a Will, in particular when there is the likelihood of the testator (the person making the Will) leaving out beneficiaries, such as children or dependants, cohabitees and previous spouses who come under the category of applicants who can make a claim against an estate.

By instructing a Solicitor to draw up a legally valid Will ensures that the IPFD will be accounted for in such situations.

Verisona Law offers a free no-obligation call to those who wish to discuss their Will or want to know more about disinheritance. Call a member of our Wills, Trust and Probate team on 02392 98 1000 or email connect@verisionalaw.com.