Mackrell Turner Garrett

 
 

Whose Will is it Anyway?

Mrs Jackson died with an estate of just over £500,000 and she left her daughter nothing in her Will and instead left all her estate to charities.

Mother and daughter had been estranged for many years. The daughter was reliant on Government benefits.

She made a claim under the Inheritance Act and the Court in the first instance awarded her £50,000 i.e. 10 per cent of the estate.

The Court of Appeal increased that to £160,000. The charities appealed and Supreme Court ruled in favour of the charities so that in effect she loses the increase awarded by the Court of Appeal.

This really was a question of the primacy of the principle that a person can do what they like in their Will which came up headlong with the principles behind the Act, which is that in circumstances; where insufficient provision is made that a beneficiary should be able to make a claim under the Will.

But of course there must be certainty in law otherwise one would never know whether that is going to be upheld or not against any claim.

On the other hand, there has to be recourse where a person acts ‘wrongly’ but who decides what is ‘wrongly’ and what factors are to be evaluated?

However, this should be tightly regulated it surely should be based purely by what a reasonable person would do.

Lord Hale commented that the current law is unsatisfactory and needs change. The sooner that process starts the better.

The case could open the floodgates to many cases of potential beneficiaries making claims which can only diminish the value of the estate and hold up its proper administration as well as frustrate the will of the Testator.

Our advice is to seek the advice of an expert legal advisor and to be open with the advisor.

The Testator is not going to be around when a claim is made, so the Testator should put in the Will itself the reasons or at least a written statement, which can be used as evidence. Such a statement should be rational and avoid being capricious.

Whatever future path the law takes the most important thing is to have certainty and that a person’s final wishes should not be likely overturned except in appropriate and safeguarded circumstances.

Jeffrey CohenJeffrey Cohen
Tel: 00 44 (0) 207 240 0521
Email: jeffrey.cohen@mackrell.com

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