As part of our series of blogs, Liz Taylor, Head of Private Client talks about a recent case and any consequences it may have.

Can I exclude my adult child from my will and leave my estate to whomever I want?

Under English law you have a fundamental right in your will to leave your Estate to whoever you like. However, the reality of the situation is that you need to be aware that legally you have to provide reasonable support to all people who are financially dependent on you such as your spouse or civil partner and anyone else you maintained or supported financially up to the date of your death such as your children or your partner if you are not married.

It is becoming more common to see challenges made to wills. You may be aware of the recent Court of Appeal decision in the case of Ilott v Mitson whereby Melita Jackson had left her near £500,000 estate to the RSPCA, RSPB and Blue Cross animal charities. Her daughter, Heather Ilott, successfully challenged the will and was awarded a sum of £163,000 from her mother’s estate.

Much has been made of this decision in the media suggesting that it is no longer the case that you can disinherit adult children of independent financial means even when the deceased had made their wishes clear. However, it has always been possible for adult children to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 by arguing that reasonable provision has not been made for them.

The courts have tended to form the view that adult children would need to demonstrate some form of financial dependence in order for any provision to be expected. However, the circumstances of this case are specific. Mrs Ilott, now 54, had eloped to marry her boyfriend at the age of 17 and her mother had apparently never forgiven her. Despite several attempts at reconciliation, Mrs Ilott and Mrs Jackson had been estranged for 25 years.

There was clearly no financial dependence in life and so there was no obligation for the Court to provide an income to fund all of Mrs Ilott's future needs. However, they felt that Mrs Ilott had been treated unduly harshly by her mother and that no provision at all was unreasonable. The Court of Appeal used its wide discretion to take into account many relevant factors in coming to the conclusion that Mrs Jackson had not made reasonable provision for her daughter. Mrs Ilott was an only child with five children of her own. She was in receipt of state benefits and had no pension. Furthermore, Mrs Jackson had no connection during her lifetime with the charities she chose to benefit.

The individual circumstances of this case are unique and as such the ruling will not have the effect of making writing a will a pointless exercise as some media reports would have us believe. It has always been important for individuals to consider the impact of the Inheritance (Provision for Family and Dependents) Act 1975 when drafting a will, especially when considering disinheriting one or more family members. However there remain some lessons to be learnt by all individuals when drawing up and reviewing their wills in future.

People can still disinherit their children but they will have to have good reasons for doing so and these reasons will need to be carefully documented. Objective and rational reasons for disinheritance may be more convincing to a court than purely emotional reasons and it would be useful for individuals to explain what their reasons and connections are to the people or organisations that they have included as beneficiaries in their will.

Perhaps the most important lesson to be taken from this case is the importance of taking professional advice when preparing a will and regularly revising and updating the will itself and any accompanying letters.

Making a will is equally important for both high net worth individuals whose estate is likely to be substantial and for those people who feel they have nothing to leave. Many of us are worth more after we are gone through rising property values, pension pots, life assurance, and savings. Here at Fieldings Porter we will be able to advise you on your specific circumstances, so anyone wishing to make or review their will should contact our team of specialist professional advisers.