| Topic: | Re:Re:Re:Re:Re:Re:Re:Disinherited daughter wins £164,000 in will challenge | |
| Posted by: | Gervase Harson | |
| Date/Time: | 28/07/15 21:51:00 |
| This case has been working its way through the courts for almost a decade and practitioners have long debated about the rights and wrongs of allowing courts to interfere with testamentary freedom. It is not uncommon for testators to want to bypass wayward or estranged adult children and in so doing need to be made aware that certain beneficiaries have the right to ask a court for provision if they felt that reasonable provision wasn’t made for them and that the courts have to consider a wide range of factors when considering a claim. Testators therefore need to be mindful of these factors when making their will. Whilst there is no way to prevent a claim being advanced by a disappointed beneficiary, there are a number of strategies that can be deployed to mitigate the risk of a successful claim. Mrs Jackson seems to have received the sensible advice to state her reasons in a separate letter (there were in fact two letters) so that this could be produced to a court in the event of a claim. Among the factors that a court has to weigh up are the financial resources and future needs of the claimant as opposed to the other beneficiaries as well as the reasonableness of the deceased’s decision. Usually an able bodied non-dependent adult child will be unsuccessful and so will not usually expend time and resources on a claim that is likely to fail. In this particular case, Heather’s father died when Mrs Jackson was pregnant with Heather. Mrs Jackson brought her up as a single parent working throughout to pay the bills. Heather left home at 17 to live with her boyfriend’s family. They got married and had 5 children. They had little money, lived in social housing and relied largely on benefits to get by. They still do. Mrs Jackson disapproved of her daughter’s lifestyle and they were estranged for over 20 years. Though it seems some efforts were made by Heather to reconcile, they never did. Mrs Jackson wrote her will and her estate was to be distributed between three animal charities to which she had no connection with and died in 2004 leaving an estate worth £486,000. Heather was entirely financially independent of her mother throughout her adult life nor did she suffer from any mental or physical disability. She accepted that she was capable of working but said she had made a decision not to, so that she could look after her children, some of whom are now adults themselves. The Courts had originally awarded Heather £50,000 which partly reflected her limited resources and the issue before the Court of Appeal was whether the original award to Heather of £50,000 was appropriate or whether the Court should re-exercise its discretion and make a more substantial award. Whilst I personally think a testator of sound mind is entitled to dispose of their assets how they choose, I am not entirely surprised by the outcome of this case. One of the key points to note is that the mother's behaviour towards the daughter was held to be unreasonable and capricious - she did actually lie in her letter of wishes! Whatever our views about the daughter, her children, the mother, the judge, the charities, I am sure practitioners will now be faced with clients on the lines of “My will is not worth the paper it’s printed on, why should I bother etc”, but I don’t think it opens the floodgates to more appeals. Ultimately the claimant only received about a third of the estate and in any event each case has to be decided on its merits and so nothing really has changed. |