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Where there’s a will there’s a war!!

A real life legal saga, reminiscent of the fictional Jarndyce v Jarndyce in Dickens’ ‘Bleak House’, has just ended in the Supreme Court.  The case involved the will of the late Mrs Jackson who left her entire £486,000 estate to charities.  She had an adult daughter from whom she had been estranged for many years and about whom she left a letter explaining that she blamed her daughter for that estrangement, and that was why she had left her nothing.

Some commentators have said that the Court of Appeal judgement of 2015 by which the daughter was awarded £143,000 to buy her rented house, together with a further £20,000, which the Supreme Court overturned, had eroded testamentary freedom and had been a charter for adult children to challenge provision made for them by their parents’ wills.  That notion was quashed by the Supreme Court which upheld the long-established principle of testamentary freedom, subject only to the provisions of the Inheritance (Provision for Family & Dependants) Act 1975.

The 1975 Act allows the Court to make specific provision where an application is made to it; there is no automatic provision stipulated as in some jurisdictions.  An application must be made on the basis that inadequate financial provision has been made for the applicant either by the will or the Intestacy Rules. Adult children, such as Mrs Jackson’s daughter, can only claim what they need for their maintenance; they cannot make a general claim based on perceived unfairness.  The test of reasonable financial provision applied by the Court is an objective one; the Court does not just look at whether the testator acted reasonably or otherwise in leaving their estate as they did.

The case involved 6 hearings before it was resolved, 13 years after Mrs Jackson died.  The daughter had left home aged 17 to live with her boyfriend of whom Mrs Jackson disapproved.  They married and had 5 children.  The daughter spent her life caring for the children and her husband earned very little money as an actor.  They principally relied on a mixture of tax credits and state benefits, some of which were means tested.  The estrangement lasted 26 years until Mrs Jackson’s death in 2004.

The daughter challenged the will and in 2007 District Judge Million awarded the daughter £50,000.  She appealed that award and the charities cross appealed. In 2009 Mrs Justice King overturned the award and the daughter appealed and in 2011 the Court of Appeal sent the case back to the High Court for reconsideration.  In 2014 the original award was re-instated.  The daughter appealed again and in 2015 the Court of Appeal made the decision mentioned above and which the Supreme Court has set aside restoring the original order for £50,000.

The conclusion is that the status quo has been maintained (if it was in reality changed) and testamentary freedom remains subject only to challenge in the limited circumstances provided by the 1975 Act and the case law developed from it. 

How much of the original £486,000 estate of Mrs Jackson remains after the protracted litigation and legal fees involved is not yet known.  However, amongst other things, the case highlights the importance of taking proper advice both in terms of your will and estate planning and also if you face a situation like the daughter where there might be reason to challenge a will.  At Schofield Sweeney we offer practical expert advice in both areas so please feel free to speak with our experts Rebecca Beaumont on 01274 377298 or Ashley Iredale on 01484 915011 in respect of any such matters.

About the Author

James Staton

Partner

James is a Partner and Head of the Dispute Resolution team and primarily handles commercial…

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