Posted: Thursday, 22 October 2015 @ 10:54
One of my favourite authors is the legal thriller writer, John Grisham and in particular his older material.
To those of you who do not know his work one of his earlier books was called The Runaway Jury where effectively the jury on a tobacco case start acting out of control and legal precedent in order to punish tobacco companies.
With this thought in mind, we now have the judgment in the Appeal Court on the case of Ilott and Mitson in which the judges(rather than a jury) really have acted out of control and left wills and probate lawyers almost clueless as to how to advise their clients on minimising the prospect of a successful claim from a disinherited adult child.
Frankly, legal advice has been turned upside down by the judgment.
The way I see it is that it totally undermines the concept of testamentary freedom and hands ultimate power to determining how estates should be distributed to the judges.
So, I suppose us contentious probate lawyers and mediators should sing "yippee."
The relevant legislation is the Inheritance(Provisions for Family and Dependants) Act 1975 which enables widows or widowers to make claims on the estates of their late partners if the will did not make "such reasonable provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive." The Act also includes children or those treated as children of deceased.
In this scenario, two years before her death Mrs Jackson was unequivocal in stating that she did not want her daughter whom she had not seen for more than 20 years to inherit.
Yet the Courts have awarded the daughter a slice of the estate and have effectively created a system of forced heirship in England and undermined the right of someone to give money to charity which is where this estate was heading.
Historically it has been difficult for able bodied children to claim successfully under the 1975 Act; especially when they have not been in financial support from the deceased. Recently, that has been my advice to two people. That advice has been shifted 180 degrees.
Now, some adult children can just wait for their estranged parents to pass away, write to the executors of the deceased once it happens irrespective of the will, refer to the Ilott judgment, issue a caveat(at nominal cost) and halt probate. The disgruntled child can hold the estate to ransom. The only way the executors can overcome this is by doing a deal or making an application to Court. The probate courts will start heaving on the back of mass litigation. Is that progress?