BUT IT’S NOT FAIR!

The past two years have seen a number of high profile disputes being reported in the press where aggrieved adult children used the courts to try to overturn their late parents’ Wills in order to acquire a larger share of their estates for themselves.

It is not surprising that these types of cases are so heavily reported given the soap opera levels of sibling rivalry, emotion and bitterness which they often involve, all underpinned by a primal urge to be treated fairly in life, not least by our own parents!

There are various ways that a Will can be challenged including the well-known ones of lack of capacity and undue influence.

However, the one that we most often read about in the press is where a claim is made under the Inheritance (Provision for Family and Dependents) Act 1975, which has been expanded over the years so that it is now available to non-traditional family members such as cohabitees and individuals unrelated to the deceased but who were treated by them in life as a child of theirs.

A case which ran and ran in the media due to the original court judgment being appealed twice involved an estranged daughter whose mother had deliberately excluded her from her Will apparently due to disapproval of her lifestyle.  In the case of Ilot v Mitson the daughter used the 1975 Act to challenge her late mother’s Will on the grounds that it did not make “reasonable financial provision” for her.

The daughter’s own financial position was far from secure and the court held that this was a relevant factor when awarding her £50,000.00.

The daughter, however, did not consider this to be a satisfactory result and appealed the decision to a higher court which increased the award to £163,000.00 following the same reasoning that the daughter’s poor financial position was relevant and carrying out a more generous calculation as to the appropriate sum to be awarded.

The daughter, however, still did not consider this sum to be adequate and further appealed the decision to the Supreme Court which unanimously over-turned the first appeal court’s decision and awarded the daughter the original sum of £50,000.00!

Some may consider that a testator’s final wishes as expressed in a valid Will being overturned by a Court in this way fails to pass the fairness test and perhaps the impressive sounding “doctrine of proprietary estoppel” would be more likely to pass this common sense test.

The doctrine was applied in the 2018 case of Habberfield v Habberfield  in which a deceased father’s daughter had worked for many years on the family farm based on a promise from her father that he would eventually leave the farm to her in his Will.

Instead, he bequeathed it to his wife. The daughter then mounted a legal challenge based on various grounds  including the doctrine of proprietary estoppel which provides that where a claimant relies on a promise to his or her own detriment and the promise is not kept then the court will rectify the position.

In this instance the claim was successful and the court awarded the previously disappointed daughter the sum of £1.17m

Clearly, this is a complex area of the law, with court judgements often turning on the most unexpected of facts.  This serves to highlight the importance of always taking expert legal advice when placing your affairs in order.

Article by David Maxwell, Senior Associate, Wealth Protection and Private Client team,

To speak to our private client team about the wills and probate services DWFM Beckman provides please contact us at David.Maxwell@Dwfmbeckman.com or Glen.Bayliss@Dwfmbeckman.com or call us on 02074088888.   Further information on our services can be found at: http://dwfmbeckman.com/expertise/wealth-protection-private-client/