UK: Unfairly Cut Out Of A Will? Here's What You Need To Know

Last Updated: 10 October 2016
Article by Caroline Cook and Katie Turney

You don't need to just 'let it be', the 1975 Act is there to protect against victims of vindictive spouses or parents, write Caroline Cook and Katie Turney.

The death of Sir George Martin, ' the Fifth Beatle', has resulted in a schism between his family over his will.

Sir George left behind two children from his first marriage and a widow and two children by her. His estate is reportedly divided so that £325,000 is left between Alexis, his daughter from his first marriage, together with others including his former chauffeur, three grandchildren, and a niece. His older son has been completely cut out.

The remainder of the estate has been left to his widow and their two children, Lucie and Giles.  Alexis has described her inheritance as 'a pittance' and has urged Lucie to 'think about this fairly'. But just what is the law?

Under the law of England and Wales an individual has complete testamentary freedom. This means that you have the right to leave your estate to whomever you chose. However, under the Inheritance (Provision for Family and Dependants) Act 1975 ('1975 Act'), certain classes of family members and dependants can challenge a will after the testator's death if they feel that inadequate provision has been made for them.

The well-publicised case of Ilott v Mitson in 2015 has highlighted that excluding a family member from a will can lead to challenge. Melita Jackson, estranged from her daughter, Heather Ilott, for many years, left a will giving her estate to various charities. Ilott, who was impecunious, challenged the will under the 1975 Act, on the basis that she had not been provided for. The Court of Appeal awarded her around one-third of the estate. The case was seized upon by the press as a threat to testamentary freedom; however, the very specific facts, in particular Ilott's straitened circumstances, mean the decision is less watershed than the press might have you believe. However it serves as an example of how the 1975 Act can operate to 'right' an unfair division in certain circumstances. It should be noted that the decision is being appealed.

In order for a 1975 Act claim to be commenced by any of Sir George's children they would need to show that they have maintenance needs and the provision they have received from the estate is not reasonable to meet those needs. Where an individual's children are grown up and self-sufficient, their ability to use the 1975 Act is limited: just because one feels unfairly treated it does not mean that you are necessarily entitled to a bigger slice of the pie. In this case, the sum of £68,250 has been left to Alexis and, being an able-bodied adult, there is no guarantee that if she were to bring a challenge to the will she would receive more.

This leads onto the question of how to deal with increasingly complex family situations. Modern families are often made up of children from different relationships. The need for fairness, or at least an explanation where there has been unfairness, is required. When advising a client who has re-married, possibly with children and step-children, it is important to discuss their obligations to all of the children as well as to their spouse.  This can involve a delicate balancing act:  not only do the needs of the various beneficiaries have to be considered, but there may also be desire to do what is 'fair' in respect of the children.

Aside from thinking about who should be left what, it is important for a client in this situation to think carefully and pragmatically about the abilities of the remaining family to cope with whatever estate planning arrangements have been put in place.  Sadly the glue holding the family together sometimes disappears with the death of the shared parent and relationships between half-siblings can sour.  Much as clients don't like to contemplate family disharmony after their death, when emotions are running high and there is cash involved, it is a sad reality that the rot can set in pretty quickly.  Resentment will surface if there is a sense that the step-parent is delaying the children receiving their inheritance or is frittering away the estate.   Sometimes a clean break can be better than step-parents and step-children being bound together for the foreseeable future under a complicated estate planning arrangement.

The 1975 Act is there to assist those who feel inadequate provision has been made for them. If you act with a capricious and vindictive streak and deliberately cut out your spouse or children and leave your estate to a third party who you seemingly had no connection with, it is likely that a claim may follow.

Taking proper advice when preparing your will to ensure that matters such as the ownership of your house are considered will help protect against problems arising. Equally, a carefully worded letter of wishes giving details of your actions and thought process can help to prevent any future claim as, in the absence of an explanation, spouses or children who feel they have been unfairly treated may not be content to just 'let it be'.

This article was first published in Spear's Magazine on 29 September 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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