Garry Bushell reported on the case of Ilott v The Blue Cross, RSPB and RSPCA earlier this year in My Estate Planning Expert, sharing his top tip for ensuring your Will cannot be contested when you die, a tip we thought worth reiterating given recent further developments in this case …
Ilot v The Blue Cross is a case that has received a lot of media attention, most recently from the Law Gazette, which, last month shared lessons learnt by the legal profession.
What is interesting about the case is that whilst Heather Ilott’s mother had clearly understood the importance of making a Will, and had made her wishes clear by writing a Will, Heather had been able to contest her mother’s Will, based on the Inheritance Act of 1975.
Her appeal was successful and she was initially awarded £50,000, but she appealed against this decision, claiming that this was not enough. The charities to which her mother had left her estate also appealed, claiming there was no lack of reasonable provision in the original judgment.
Upon the second hearing, Heather was awarded more - £143,000 to buy the rented home she lived in plus £20,000 additional income.
The story did not end here though, for the Supreme Court eventually struck out that second ruling and Heather finally got the £50,000 originally awarded.
According to The Law Gazette, Lesley King, a professor at the University of Law, said at the annual conference of the national organisation Solicitors for the Elderly, that charities would be pleased with the ruling as it ‘takes into account their needs and that we should take testators’ wishes seriously’.
She summarised that:
“The [Supreme Court’s] comments said charities are reliant on legacies and you should take into account the effect it would have on them if you take that award away.”
She added that the judgment made it clear that adult children should be entitled to maintenance but that it should not necessarily extend to reasonable financial provision and it seems likely that this decision will influence future court appeals.
This is good news for Charities, less good news for family members pondering similar appeals.
Heather's Mother did leave a Letter of Wishes and this was useful because it provided the court with the explanation of why she had excluded her daughter and the facts of the case and her reasoning were an important factor. The Court intimated that whether someone's decision was reasonable in the circumstances could play a part in whether or not the claim was successful.
In most cases where a Letter of Wishes has been left by the deceased, the potential claimant will usually decide against making a claim due to the possibility of a costs order being awarded against them if unsuccessful.
A Letter of Wishes is a document that accompanies your Will. It is not legally binding but can guide your executors and trustees to ensure your personal wishes are carried out. It best way to discretely provide explanations as to why you have excluded someone from your Will, if you think that it may be a controversial decision or challenged later.
Of course, you can always state why you have excluded someone in your Will, but doing so means anyone can read this once the Will is processed through probate. In our experience, there are very few people who wish to punish family members they’ve chosen to exclude by placing the reason for their decision in the public domain.
If you think a Letter of Wishes is a good idea, it is relatively simple to write.
Just remember, it needs to be written in plain English, signed and dated. It could be witnessed but this is not a requirement and some solicitors advise not to have your Letter of Wishes witnessed to avoid any claim that it has become a legal Will or codicil, or that you have been pressurised into writing it.
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