AdminCase Law: How It Affects The Way We Work

30 August 2019by Liam Smith

In our line of work, there have been a large number of high-profile cases and subsequent case law that we, as professionals, need to take into consideration at all times in the preparation of Wills. Any one of these case laws can be raised should circumstances appear to be in any way similar in nature.

This week’s article will cover White v Jones (1995) and Ilott v The Blue Cross and others (2017).

White v Jones (1995)

We published an article earlier in the year as a reminder on White v Jones and the duty of care you, as the consultant, and WillPack, as the drafters, have to the testator(s) to keep any time delays to a minimum in preparing and producing documents ready for attestation as soon as possible.

In brief, the client, Mr White contacted Mr Jones, his Solicitor, to change his Will to provide for his daughters as his previous Will had specifically excluded her due to family disputes. At the time of instructing Mr Jones to update his Will, Mr White and his daughters had reconciled. However, after more than 40 days Mr Jones had failed to produce a new Will for Mr White, who had died.

After legal action by the daughters against Mr Jones, he was found negligent and liable due his breach of the duty of care he had towards Mr White, which therefore caused a loss of inheritance for the daughters.

This case law highlights the importance of keeping time delays as low as possible. The circumstances of the client also need to be taken into consideration. If you are aware of any issues that could make the preparation of any documents urgent, they must be clearly highlighted in your instructions. Urgency requirements include;

  1. The age of the clients;
  2. Any known health issues, e.g. terminal diagnosis;
  3. High risk lifestyle or career, e.g. participates in motor racing; and
  4. Planned holidays.

Ilott v The Blue Cross and others (2017)

This case law is directly linked to the Inheritance (Provision for Family and Dependants) Act 1975 (the 75 Act), while also highlighting that everyone making a Will in the UK has the freedom to distribute their assets as they see fit.

Mrs Jackson (the testator) passed away in 2004, leaving her estate to 3 charities and choosing not to provide for her daughter, Mrs Ilott (the claimant). Mrs Ilott decided to contest the Will under the 75 Act due to the lack of provision.

Initially, the District Judge concluded that Mrs Ilott had not been left reasonable provision and awarded her £50,000. After an appeal, she was awarded a sum of £143,000 to purchase a property plus an additional £20,000. Following this, the charities further appealed the decision which reached the Supreme Court. The Supreme Court reinstated the initial award of £50,000 to Mrs Ilott.

The final judgement is lengthy, but most comments highlight the fact that adult children are not automatically entitled to a large portion of their parents’ estate.

The 75 Act does not state that a testator must provide their entire estate to their children/dependants, or even enough to cover all their needs. It also does not state that children/dependants are entitled to a higher sum than what they have been provided in the Will. Instead, a testator must provide reasonable provision. Reasonable provision is an argumentative term which a testator and their Will Writer need to discuss at length when writing the Will.

There are no absolute safeguards to prevent a Will from being contested by a disinherited claimant. Therefore it is up to the testator to provide as much evidence as possible to provide their reasons for not reasonably providing for a claimant financially and ensure this is kept with their Will for the executors to find. It is also advisable for the Will Writer to support his/her own files as they may be asked to provide their own evidence to defend the estate.

Liam Smith

Please note that we are only insured to provide advice to our partners. If you require any advice we would recommend contacting the Society of Will Writers on [email protected] or 01522 687888 who will be able to put you in contact with a will writer local to you.