Where there’s a Will there’s (maybe) a way

In a controversial judgement, the High Court in England has decided that the late Melita Jackson had been ‘unreasonable, capricious and harsh’ in failing to leave reasonable provision for her daughter in her will by bequeathing her entire £486,000 estate to animal charities. 

Her will was a deliberate act on the part of Mrs Jackson, who took active steps to disinherit her daughter, explaining to her lawyers her reasons for doing so and leaving no doubt as to her intentions.   The judge examined Mrs Jackson’s motives for disinheriting Mrs Ilott (who was an only child) and found that the source of tension stemmed from Mrs Ilott’s elopement with her boyfriend 37 years ago, when Mrs Ilott was 17.  Mother and daughter had never been reconciled.  

Nevertheless, the judge considered that the will could not stand.  Critics of the ruling believe that this recent judgment undermines the freedom of each individual to decide who benefits from their estate and creates a great deal of uncertainty for future cases regarding will provisions in England and Wales. 

By contrast in Scotland, there is a basic provision of ‘legal rights’ under Scots law which entitles a natural or adopted child to make a claim on their parents’ estate, regardless of family or financial circumstances or the state of their relationship.  Even if an individual was given away at birth (but was never formally adopted) and had never seen their birth parent, they would still be entitled to make a claim on that parent’s estate, whether or not there was a will in place and even if they had been deliberately excluded from any such will.   

The amount of money that a legal rights claimant is entitled to depends on factors such as whether their parent had a spouse or civil partner when they died and whether there are other natural or adopted children also entitled to claim legal rights.  It is worth noting that at present, legal rights can only be claimed on the moveable estate, so heritable estate such as a house, flat or land cannot form part of a claim. 

It is possible for people to minimise the amount of money that their child could receive from a prospective legal rights claim and we would encourage any clients considering how to mitigate legal rights to explore their options.  Other situations where it may prove beneficial to minimise legal rights are where an individual wishes to make provision for a second spouse or civil partner without a legal rights claim from their children depleting the estate. 

For more information regarding will provisions and legal rights please speak to Ian Macdonald, Annie Pearson or Dara Richards.