Is testamentary freedom restored? Yes, it is!

There cannot be many people left who are unaware that the terms of a Will may be changed after you have died if your close relatives have been left short. The rules governing whether, how and how much can be altered have been the subject of many high profile cases ever since the Inheritance (Provision for Family and Dependents) Act was passed more than forty years ago, in 1975.

The pendulum has swung to and fro, sometimes allowing testators to have freedom, and other times allowing the disappointed beneficiaries to step in above the entitlement of, often, major charities. One of the latest of such cases was Ilott v Mitson which was concluded by the highest court in the land – the Supreme Court, last year. The true title of the case was “Ilott v Blue Cross
and others”, and its facts were quite simple: A mother fell out with her daughter, meaning that the daughter had to live her entire adult life without any financial support from her mother. Of course, many people are in that situation anyway. The mother thought she had no reason to leave anything to her daughter and made a Will in the terms of her own choice – benefiting charities. But the question arose – what should be the case if the daughter was living in circumstances that many people would consider below a reasonable level of comfort and convenience? Should the blood relative’s financial need trump the testator’s freedom of testamentary disposition?

The Court of Appeal found in favour of the daughter, for reasons which, on closest analysis now seem flawed. They said long estrangement should not be a factor, they said the gift to charities
was a “windfall”, they said the daughter should not lose her means-tested benefits.

The Supreme Court found these arguments was based on untenable reasoning and corrected the decision. They ruled that any award does not need to solve all the claimant’s financial problems, but need only represent the necessary contribution towards a claimant’s day to day needs. There may be other candidates available to support a persons needs – such as the state at large (ie benefits), or a spouse, or even the claimant’s own children. And the original judge’s ruling, in 2007, when the case first came to the High Court contained the sentence: “I would consider it reasonable for (Mrs Ilott) to attempt to support herself by some paid work during the course of the next few years”.

The result therefore is that there is now considerable certainty that you can write your Will in your own terms in the knowledge that it will probably not be overturned or diluted.

For more advice about Wills and testamentary dispositions contact John Pulham at:-

Messrs Pulham & Co
Egmere House,
Market Place,
IP17 1AG
Telephone (01728) 602084 or e-mail