A principle worth defending

18 April 2017

Chris Millward, chief executive at the Institute of Legacy Management, discusses why the Supreme Court’s recent ruling on Ilott v Blue Cross and others is important to us all.

Exercising her testamentary right to freely dispose of her assets, in 2004 Melita Jackson died leaving her entire estate to charity. Conscious of events of the past, she also left a letter explaining why she had done so and instructed her Executor to defend any future claims against her estate.

Subsequent to her death, Mrs Jackson’s estranged daughter, Heather Ilott, brought a claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975.

Fast forward nearly a decade; several hearings; many judges and a variety of different outcomes later and we reach 2016 and the final ruling by the Supreme Court. This long-running and, on reflection, bitterly sad family drama has been played out in full public view.

For anyone who might ever write a Will, whichever side of the argument their sympathies may lie with regard to Melita Jackson and her daughter Heather, the lack of clarity created by the outcome of the 2015 hearing was unhelpful.

Providing clarity

The charities involved appealed the decision. Financial arguments set aside, they sought clarity on the principle of testamentary freedom and the extent of Judges’ powers in consideration of such situations.

The unanimous ruling by the Supreme Court provided clarity which I believe Will writers, their advisers and charities should take heart from. Clearing up uncertainties and misunderstandings and providing guidance which will help those involved better deal with such situations.

The ruling confirmed that the final wishes of the deceased matter and that they should be taken into consideration when assessing any such claim against an estate.

It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator’s wishes cease to be of any weight…” (Para 47)

It also highlighted that any decision to leave money to charity should be respected and that charities do not have to demonstrate ‘need’ in order to justify their entitlement – something the High Court ruling in 2015 had moved to suggest.

The ruling will allow those writing Wills to make more informed decisions and those advising them to give clearer guidance. It will also ensure that gifts left to charity by generous donors can be honoured, securing their impact for future generations.

Safeguarding final wishes

There are several practical steps you can take to protect your final wishes.

1 – Have your Will professionally drafted

Make sure you use a professional to ensure that your final wishes are accurately recorded. A solicitor will keep notes of the discussions you have had and the instructions you have given.

2 – Talk to your family and friends.  

We appreciate Will writing is a private matter, but some of the problems which arise after death can be avoided if you are able to discuss your final wishes with others.

3 – Choose your Executor carefully

Your Executor is representative after you have died and the person legally responsible for ensuring that your final wishes are carried out. Make sure you appoint someone who knows you and your affairs well.

4 – Charitable gifts

If you are going to include a charity in your Will, make sure that you include their current name, registered charity number and address. This will help to ensure there is no confusion in terms of who you want your support to go to.

5 – Keep your Will up to date

Life changes, make sure your Will is up to date. This is the only way to be sure that the people and causes you care for are remembered in the way you wish.  So, if you’ve recently got married, divorced or faced any other major life change, it’s time to review your Will.

Chris Millward, chief executive at the Institute of Legacy Management

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