All cases will turn on their facts and a Court will consider the particular circumstances in detail when coming to its decision . It is a balancing exercise between the needs of the other beneficiaries , the applicant and the various other factors , all of which should be considered . It can be difficult to predict what a Court will decide , as much depends on the circumstances of a particular case and the Judge ’ s views . A decision to exclude someone would not in itself be unreasonable ; a testator should be able to leave his or her Estate to whoever she wants . Instead it is the result of that decision which is important to a court ; does the decision by the deceased produce an unreasonable result ? Particularly where the applicant is an independent adult , who has been living without the deceased ’ s support , there needs to be something more to the claim for it to succeed – whether there is any moral claim which the applicant can put forward . A particularly close relationship ( or an estrangement ) between the deceased and the applicant will be important when considering whether the decision produces an unreasonable result . In this case , Mrs Mitson made her Will because of the long estrangement between her and Mrs Illott . It was therefore an important factor , particularly because Mrs Illott was an adult child living a separate and independent life . Another important factor in this case was Mrs Illott ’ s difficult financial circumstances , and the argument that she had particular financial needs . The Supreme Court found that the District Judge was right to take both factors into account when making his decision .
The court must consider all the circumstances of the claim when considering what reasonable financial provision should be made , and in particular the section 3 factors . All aspects must be considered when coming to the final figure of an award , and some parts should not be ignored before a decision is made on the level of provision . The needs of the claimant and the other potential beneficiaries , as well as the conduct and size of the Estate are all factors which , if relevant , should be considered before reaching a single assessment of what reasonable financial provision should be made . In the second Court of Appeal judgment the court incorrectly reached a decision on reasonable financial provision before considering all the other relevant factors .
What does it mean for you ? If you are thinking of leaving out an estranged child or other family member from your Will , you need to think carefully about their financial circumstances , your reasons for your decision and whether they could make a claim against your Estate after you have gone . A claim mean additional costs to the Estate before any legacies are paid . Discuss the circumstances and your wishes with your solicitor and set them out carefully and truthfully .
You might want to challenge your parents ’ Will if you were not left anything . In this case you need to consider why you weren ’ t given an inheritance , as well as your circumstances and those of the other beneficiaries to the Estate . Take legal advice as to whether you might be able to make a successful claim . It will be up to you to prove your claim and convince the Estate , other beneficiaries or the Court that provision should be made for you . It can be a very costly and stressful exercise and so you need to consider your position carefully .
Lastly , this case highlights the difficulties that charities face when they are left legacies in a Will . Legacies make up a huge part of most charities ’ income , and so are very valuable . However charities can find themselves in a difficult position when the legacies are challenged by family members , and decisions have to be made as to whether to fight any challenge and the likely costs . Charities have large resources and do not need to justify the legacies they receive .
In any situation , it is important to get good legal advice so that you can consider your options and how you want to proceed . Our Contentious Probate team can advise you on any claim and will give objective and sensible advice to allow you to consider the best way forward .
By Miranda Jenkins
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