What is Testamentary Freedom?

Jess Long - RRL Wills

by Jess Long, Associate

For more information on how our team at RRL Wills can provide further advice and assistance with the preparation of your Will, please contact Nick Latimir on 01872 276116 / 01736 339322 or nick.latimir@rrlwills.co.uk.

Go back to all articles

Unlike many other countries, in England and Wales, we have a right to testamentary freedom.

Testamentary freedom is a person’s right to leave their assets to whomever they choose under their Will. It follows, therefore, that if you would like to leave your entire estate to charity and not to your spouse or children, you are legally entitled to do that.

Testamentary freedom can, however, be put to the test by the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). This act allows for certain categories of applicant (including adult children) to make a claim against an estate on the basis that reasonable financial provision has not been made for them. The right of a child to bring a claim against an estate is created, recognised and protected by the law. The purpose of the 1975 Act is to ensure that adequate provision is made for those persons who could be said to have a moral claim on your estate.

Historically, claims by adult children have been regarded as unlikely to succeed unless the child can show evidence of having been maintained by their deceased parent. The recent widely reported case of Ilott v Mitson may have paved the way for an increase in claims that show little evidence of such maintenance.

The case of Ilott v Mitson concerns an estranged adult daughter’s claim against her mother’s estate. As a result of the estrangement between mother and daughter, the deceased deliberately and expressly (by her letter of wishes) excluded her daughter from any benefit under her Will and chose instead to leave her £486,000 estate to three animal charities.

It was held that Mrs Ilott’s mother did not make reasonable financial provision for Mrs Ilott and she was awarded a lump sum of £50,000. The award was later increased by the Court of appeal and Mrs Ilott was awarded £143,000. After nearly ten years of litigation, the Supreme Court ordered that the original decision made in the first instance was correct. The award of £50,000 to Mrs Ilott was reinstated.

While the case has been heralded as a win for testamentary freedom it has still left the door open for 1975 Act claims. There is no watertight situation where a Will cannot be challenged by an applicant under the 1975 Act and claims by adult children may still succeed, in the right circumstances.

Some steps can be taken to limit the possibility of litigation:

  1. Have your Will professionally drafted– It is advisable to use an experienced, qualified professional Will writer. Your legal adviser will ensure that your wishes for the distribution of your estate are correct. The correct legal formalities will be followed and your reasons for the distribution of your estate will be documented on file.
  2. Leave a letter of wishes – If you have decided not to benefit an estranged child, it is sensible to leave a letter to accompany your Will. The letter should explain your reasons for the decision which you have made. The Supreme Court’s decision in Ilott v Mitson should give some comfort to those making Wills that their wishes will be taken into account by the Court in the event of a 1975 Act claim. It is worth bearing in mind that 1975 Act claims are subject to the facts at the time of the court hearing, not at the time the Will was made or even on death. Just because you think that your children are doing well for themselves today and will not need any assistance under your Will, that may not be the case at the relevant time.
  3. Leave a sweetener – You could decide to leave a small gift to the estranged child to deter a claim being brought. In addition, a clause can be inserted into your Will which states that if a claim is brought by the estranged child, the gift under the Will would be forfeited. Although a clause of this nature may not be enforceable, the potential challenger may think twice about making a claim against your estate. A legacy of this nature will also show that you have considered any moral claim that you may have toward the applicant.

 

This publication has been prepared by RRL Wills Limited. It is to be treated as a general guide only and is not intended to be a comprehensive statement of the law or represent specific advice. No liability is accepted for the opinions it contains, or for any errors or omissions. All rights reserved.