Can a person can write someone out of a will? The subject of many a fictional drama – and plenty of real-life ones – the issue in the UK is examined here by law firm Charles Russell.

The following article is on that thorny subject of whether a person can write someone out of a will. The subject of many a fictional drama – and plenty of real-life ones – the issue in the UK is examined here by James Lister and Katelyn Warner of law firm Charles Russell. This news service is pleased to share these opinions but as ever, points out that they are not necessarily endorsed by this publication.

At the time of writing, Judge Catherine Newman is considering her judgment in Christine Watts’ claim against her brother, Gary Watts, challenging the validity of their mother’s will and seeking financial provision from her estate.  Christine is alleged to have “done nothing to get a job” whilst waiting for her mother to die in the expectation that Christine’s dire financial situation would be eased by her inheritance. However, without Christine’s knowledge, her mother wrote Christine out of her will on her deathbed, leaving her entire estate to Gary. Christine’s claim is put on the basis firstly that the will should be held to be invalid and (presumably) secondly that even if the will is valid, Christine will say that she should be entitled to financial provision from her mother’s estate.  

The particular unfortunate facts of the Watts’ case do not include an estate of substantial value – however, issues such as those raised here are as relevant for a £200,000 ($334,597) estate as they are for a £20 million estate.

The first hurdle is whether the will is valid at all. There are strict requirements on the drafting and execution of a will which must be met. It is therefore critical that legal advice is sought, not least because proper tax planning can then be implemented, but also to reduce the prospect of a future challenge to the validity of the will. Such challenges can be made on the ground of: lack of proper formalities (for example where a will is unsigned); lack of testamentary capacity; lack of knowledge and approval; and undue influence or fraud on the testator. Those subjects have been widely discussed. However, of particular interest here (given, for example, the facts of the Watts case) is what happens where a will is valid, but where a beneficiary or potential beneficiary remains disappointed by their inheritance?

Bringing claims both against the validity of a will and for financial provision is not unprecedented. Accepting the validity of the will in a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 would not preclude Christine from also pursuing her challenge to the validity of her mother’s will. In Pinnock v Rochester [2011] EWHC 4049 (Ch), the court held that it was possible for a claimant to pursue both claims as they were conceptually different, despite the claimant having purportedly accepted the validity of the will in 1975 Act proceedings.

A serious concern
The provisions of the 1975 Act are a serious concern for high net worth individuals in their testamentary planning. On its face, the Act would seem to trespass on the key principle of testamentary freedom long upheld in English law. The Act enables a defined category of claimant who feels they have not been sufficiently provided for by the testator to bring a claim for reasonable financial provision from the testator’s estate, over and above what that person receives (or does not receive) from the estate under any will (or on intestacy). Such claims can be made where the deceased was domiciled in England or Wales at the date of death and must normally be made within 6 months of the Grant of Probate.

The categories of potential claimant are wide – spouses and civil partners are included, but so too are former spouses/civil partners who have not remarried, children of the deceased (and those treated as children of the family), cohabitees and those who were financially dependant on the deceased before his/her death. Although the categories of claimant are strictly defined, in practice, it covers a broad range of individuals. This will be of concern to any high net worth testator who intends to exclude any of the potential claimants from his or her estate.

Claims under the 1975 Act are brought on the basis that reasonable financial provision has not been made for the claimant by the deceased, under the terms of his/her will or on an intestacy. The court is required first to assess whether the provision made (if any) is reasonable and secondly (assuming the provision is not reasonable) to determine what provision should be made instead. This effectively involves a court rewriting the will (or at least redirecting the assets from the estate).

The court has a wide discretion under the 1975 Act and can order periodical or lump sum payments, property transfers and the variation of nuptial agreements to which the deceased was a party for the benefit of the surviving spouse, civil partner or any child or step-child of the deceased. Interim orders can also be made if immediate financial assistance is required.

The court has a variety of factors to consider on such a claim, concerning the provisions made for other beneficiaries and their respective positions as well as the claimant’s own financial circumstances. This inevitably leads to disputes, not least from those who consider that a testator’s wishes should be upheld even in the face of a claim under the 1975 Act. In practice, such arguments are unlikely to trump a justified claim for financial provision where insufficient provision has already been made.

The provision that could be ordered differs depending on the claimant – for spouses and civil partners, the test is the financial provision that is reasonable in all the circumstances. For other claimants, the test is simply what financial provision is required for that claimant’s maintenance (a needs-based approach). In either case, the court is required to scrutinise the financial circumstances and needs of the claimant, making such claims akin to divorce in many cases.

The practical effect of the Act is no better highlighted than in the claim brought by Heather Ilott against her mother’s £500,000 estate (Ilott v Mitson & others [2014] EWHC 542 (Fam)). Ms Ilott had been entirely excluded from her mother’s will, having had a very poor relationship with her for many decades. The mother’s estate passed to three well known charities. Despite being an adult child, Ms Ilott was successful in obtaining an award of £50,000 from her mother’s estate (although there have been several appeals on this decision, that award stands). This is a good illustration of how difficult it is to exclude 1975 Act claimants from an estate. It is likely that, if the claim by Christine Watts fails to show that her mother’s will is invalid, she will (on the basis of the Ilott decision) recover something from her mother’s estate under the 1975 Act should she pursue that claim.

The Watts case highlights the need for high net worth individuals carefully to consider their testamentary options, particularly with regard to nuptial agreements and wills. It is in practice very difficult completely to exclude a claim being made under the 1975 Act, particularly where some family members or relatives are preferred at the expense of others. However, early advice from professionals concerning the mitigation of such risks will help to avoid the possibility of claims arising in the future after death.