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Testamentary Freedom

The Supreme Court has recently issued a decision in the case of Ilott v Mitson turning on the interpretation of the Inheritance (Provision for Family and Dependants) Act 1975 (the Act ). In England and Wales a testator can choose to distribute their estate to anyone subject to the possibility of an excluded person bringing a claim under the Act.

The Court may decide to make financial provision for a dependent of the deceased be it a child, spouse, or former spouse if the Court concludes that the testator failed to make adequate financial provision for them. Such a claim is more likely to succeed if the Claimant is receiving state benefits.

Unfortunately the Act is deliberately vague about what constitutes reasonable financial provision. For many potential Claimants this will constitute what is reasonable for their maintenance. A diverse range of factors will influence the Court in its decision including the obligations the deceased may have had towards the Claimant, the needs of the Claimant and their financial resources all of which will have to be weighed against the financial needs of other Beneficiaries of the deceased.

There is scant guidance to assist with the evaluation of the competing claims. As a consequence it is often difficult to predict the outcome of a case with certainty.

Regrettably the Supreme Court failed to take up the opportunity to clarify the law in this field. Furthermore it was expressly stated that a number of very different conclusions could reasonably made by the first instance Judge. Lady Hale commented that there is no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance.

It is still open to a testator to exclude adult children from being beneficiaries under their will but such a testator must be mindful of any moral claim that an excluded potential beneficiary may have against their estate as well as the financial position of the excluded person. In limited circumstances claims by impecunious adult children will succeed but generally the wishes of a testator will be taken into account by a court. A testator should always record in detail their reasoning for excluding a family member who might be expected to bring a claim under the Act.