After Illott, why bother even making a will?

why bother even making a will

The Inheritance (Provision for Family and Dependants) Act 1975 allows a child to claim maintenance (only) from a deceased parent’s estate, where the child thinks that reasonable financial provision has not been made for them. It is commonly thought, and accepted, that the Act was designed with minor children in mind, and of course maintenance payments for minor children are commonplace.

However, the Act does not stop children of any age applying for payments they think should have been made by their parent in a will. In the case of Illott v Mitson, a lady left her £500,000 estate entirely to 3 animal charities, and gave nothing to her estranged daughter. The daughter issued a claim and the legal profession and the charities were very surprised when the Court made her an award of £143,000 for maintenance. The Court said that the daughter, who had struggled financially for many years, living in Housing Authority accommodation, receiving state benefits and bringing up 5 children, should receive a lump sum to enable her to buy a home for herself.

The decision is being appealed but people are asking – what is the point of making a will if it can be so easily challenged?

You should still make a will. You must give thought to all family and/or friends who might be unhappy with it and who might want to challenge it. State your reasons in the will or in a separate letter. Although the Act is concerned more with financial circumstances than a testator’s wishes, the more rational your decision the more secure it is. If you do wish to benefit a charity, explain why you have chosen that particular charity. You could give a potentially disgruntled beneficiary a small legacy but say that if they challenge the will they will forgo the legacy.

Consider gifting assets away whilst you are alive, if you can afford to do so. That may help in any case if you go into a care home and face high care fees, or with inheritance tax. Only by making a will can you at least tell everybody what you want to happen to your assets after you have died.

Rachel is a specialist probate advisor with over 10 years experience. Contact Rachel by email rachel.flower@smithpartnership.co.uk.