What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

In July 2015 I wrote this Blog – Courts Ignore Your Will. – Link here

In brief, a lady had disowned her seventeen year old Daughter, because she married without her approval. Apart from a couple of failed attempts to reconcile, they had no contact again before Mother’s death when Daughter was aged 54.

During all that time Mother made no gifts to her Daughter of any kind, not even ten bob in a birthday card. Not even a birthday card come to that.

The Daughter and her husband have five children. They all live together with on very low income supplemented by state benefits. That is to say, by money paid by you and me, from our tax, which comes from our earnings, which comes from our hard work. At any rate, none of their support came from her Mother while Mother was alive, although she could have afforded it.

Now whether the Mothers’ behaviour was reasonable is open to discussion. Most would say it was not reasonable. What has that got to do with it? For so long as Mother was alive, there was no pressure upon her to give any financial support to her Daughter.

And if she didn’t want to give the time of day to her Daughter, there is no law to say otherwise.

It might be that some people would say that adults with substantial assets should be forced to assist children and grandchildren struggling on low income. But in England, [at present] that is not the law. Whilst Mother was alive there was no Court action which Daughter could have successfully brought against her to win a share of her money.

And yet after the death, and reading Mother’s Will which left all of Mother’s estate (£486,000) to charities, Daughter brought a claim for a share of the estate.

On one level it all seems a bit random. Mother is dead now so I want a share of the money. Yet when Mother was alive, there was no share. And if Mother had lived to be 120 and spent all her money on care home fees, there would be nothing to get a share of.

And the 1837 Wills Act enshrines the English principle that you can leave your money to whoever the hell you want to. Because, It’s your money, see, Sherlock?

By the way, this is pretty unusual around the World. In most countries, in fact you are not free to dispossess or ignore your family members in your Will. Even in Scotland just up the road, your children are entitled to share up to half your money after you die, even if you hated their guts.

Anyway, we are not in Scotland or Spain or anywhere foreign.

But there is a Law here which to an extent contradicts the Wills Act. The Inheritance (Provision for Family and Dependants) Act of 1975 says that as regards children [that is, issue, whether adult or minor], a child ignored by a Will can claim “reasonable financial maintenance”.

Ok, so we are faced with the word “reasonable”.

What in the world might that mean?

In this case, your view might be –

1 After thirty years of no contact, it is reasonable for nothing to be paid or
2 The Daughter is not starving, she has no claim upon any more money, but the estate should be ordered to pay enough to ensure that the State no longer has to pay benefits [out of our tax!] or
3 The Mother has an estate worth hundreds of thousands of pounds, the word reasonable should be interpreted in the light of the size of the Estate. So that a Daughter should receive more money from a multi-million pound estate. Which would put a strain on the word “Maintenance” but you might think that the provision of a higher standard of living is a reasonable interpretation in the context of a huge estate?

The fact is, the Law give no explanation of what its words “reasonable” or even “maintenance” actually mean.

This results in a situation where the trial Judge is on his own, and the decision will depend upon his human reaction to the facts of the particular case. So if he likes the Daughter, she wins? Not the best basis for the Law surely.

So, in the first instance, the Daughter was awarded £50,000.00. But when she appealed for more, to the Family Court, she got nothing at all. Link here

On the next appeal, the Court reinstated the decision of the first judge that there should be an award of something to the Daughter, and allowed an application that the actual amount could be reconsidered at a further hearing.

On her next Appeal after that, to the Court of Appeal, the amount of the award was increased to £163,000.00 link here . This was the point in 2015 at which I, like many lawyers, began to feel that making a Will is a waste of time if the Courts won’t take notice of my wishes.

It is reported that after this decision, with such a resounding success for the Daughter, there has been a rise in similar applications to dispute the terms of Wills. This is regrettable if you believe that the terms of a Will should actually be put into effect, not picked apart by the Courts for the next twenty years until the Lawyers have got all the brass.

In the final resolution, the Supreme Court Appeal Decision link here, has in essence said, stop all this messing about. Unless an original Judge has misunderstood the law, or applied it incorrectly, then his decisions must stand whatever other people and Judges would have decided if they have been in charge instead.

Much like football. Was it a goal? Well it was if the Referee said so, and if you don’t believe it, read the paper tomorrow. Don’t take it to the Court of Appeal.

So, the final upshot, we are back where we started, at an award capitalised at £50,000 for the Daughter in lieu of maintenance.

And it is 2017 today, and Mother died in 2004.

In that judgment this month, the Supreme Court Judge Lady Hale, also pointed out that it would have been helpful to everyone if the Law were more precise.

Use of words like “reasonable” and “factors to be taken into account” mean different things to different people. And once you have taken factors into account, the law gives no guidance as to what weight should be applied to each factor.

Lady Hale did not say, but did perhaps imply, that in this case, and given that England is a Country where property owners are understood to be able to dispose of their property on death however they jolly well please, it might have been easy to understand if the original Judge had dismissed Daughter’s claim entirely.

That is the outcome that most of us would probably think fair. Or does that depend upon whether
A. you own a lot of stuff, or
B. your Mother does?

At any rate, to answer my original question, this decision has gone a long way to reinstate the view that, yes it is worthwhile making a Will.

Many commentators are suggesting that if you intend to leave nothing to your children, and to leave large sums to charities which you have never seemed very interested in during your lifetime, perhaps you should write a letter of wishes and keep it with your Will. This could be a more detailed letter, written in non “Legal-Jargon”, in which you could make clear the strength of your feelings. Might help I suppose.

Families, eh? Here’s a Happy Song.

As always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Advertisements