downsize their property on retirement

Many people will be familiar with the widely reported case of Ilott v Blue Cross (2017) (you can read more about it here for a refresher). In that case, the Supreme Court confirmed an estranged adult child had succeeded on recovering £50,000 from her mother’s £486,000 Estate despite being specifically excluded from her Will.

“Is it worth preparing a Will?”

In the wake of this decision, many clients now question whether it is worth preparing a Will if the terms can be varied by the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”). 

Under the 1975 Act it is open to an adult child to make a claim for financial provision even if they are not detailed in the Will or they feel the provision they are set to receive under the terms of the Will is insufficient for their needs.

“Bulletproof” your Will

Whilst nothing can entirely exclude the ability of an eligible applicant to pursue a 1975 Act claim if they intend to do so, there are steps which you can take in a bid to make your Will as “bulletproof” as possible including:-

Leave a Gift

If a child is left something in a Will it can sometimes be more difficult for a Solicitor to advise them post-death that they have a meritorious claim to receive more provision from the Estate. A gift in a Will can also evidence that this is sufficient for the child in question and no further provision is required. In order to ensure the gift is of sufficient size to deter a claim under the 1975 Act you must seek legal advice from a legal advisor who specialises in 1975 Act disputes.

No Contest Clauses

This is a clause included in the Will which says that a child’s gift will be forfeited if they bring a claim against the Estate including a claim under the 1975 Act. Although such clauses aren’t legally binding they can have the effect of making the child think twice about bringing a claim. Again this clause will only be effective if the gift to the child is pitched at the right level and so you must seek specialist advice as outlined above.

Prepare a Side Letter

Although Mrs Ilott’s mother (Mrs Jackson) in Ilott v Blue Cross had written a side letter explaining her reasons for excluding her daughter from her Will, and an award was made anyway, it would be a serious over simplification of this complex judgment to say that side letters have no impact on a 1975 Act claim.

In fact the Supreme Court specifically said that it would consider the length of any period of estrangement and the wishes expressed in a side letter when deciding whether a claim should succeed or not. A side letter gives the person making the Will an opportunity to put forward their voice to the Court to aid a judge with their decision making process even when they are no longer here. If you don’t prepare such a side letter you will lose that opportunity to be heard.

There are, therefore, ways in which you can prepare your Will to discourage your children from pursuing a 1975 Act claim against your Estate. 

Clearly the more specialist advice you receive when doing so the more likely it is that your assets will be protected from a claim. We would therefore always encourage clients to seek such advice from our specialist Inheritance & Trust Disputes Team when updating their Wills as we work closely with our Private Client colleagues to protect their Wills as much as possible from potential claims.