- May 26, 2020
- By David Wedgwood
- 0 comments
The Ungrateful Dead – Death of an Unloving One
It is a truth commonly acknowledged that on the death of a wealthy man, [person] close relatives will have an expectation of a legacy. Case law, right back to Goodfellow v Banks (1870) LR 5 QB 549, recognises this truth, in that one of the conditions for having the mental capacity to make a will is being able to understand your moral obligations to those around you.
Initially that class of persons was limited to next of kin, however, since the 1930s the courts have reflected society’s more liberal views on legitimacy, non-married couples and dependants. These are now statutory rights under the Inheritance (Provision for Family & Dependants) Act 1975.
However, because the testator is required to understand the moral claims upon their estate, doesn’t mean to say that they have to act accordingly. We often come across cases where someone is deliberately excluded. The reasons are varied, but a common example is where a parent had fallen out with a child, perhaps over something that had happened a long time ago.
Whilst the Inheritance (Provision for Family & Dependants) Act 1975 does mitigate these circumstances, recent case law, such as that of Iliott v Mitson  UKSC 17 continues a long line of judicial pronouncement in favour of testamentary freedom. In particular there is a reluctance to make awards to adult children who are not under any physical or mental disability. It should be noted however, that although that case made much of the fact that such claims should not succeed, it did uphold an award for Mrs Iliott.
Furthermore, some people are not obviously eligible to claim under the Inheritance (Provision for Family & Dependants) Act 1975. A classic example is a neighbour who has cared for an elderly person for many years.
If someone is unexpectedly excluded from a will, the natural reaction is to think that something must have gone wrong. Someone has intervened and forced the testator to make an unfair will. Alternatively, it is often claimed that there was a fraud, or that the person lacked the mental capacity and did not know what they were doing. These are all possibilities, although it has to be said they are often hard to prove. People tend to invest in these possibilities, rather than face the unpalatable truth that the testator has deliberately excluded them.
We had one case where an elderly lady was cared for by a neighbour. She was taken on holiday, spent Christmas with them, had daily visits for over 20 years. Sometime before her death, the neighbour assisted her to make a will leaving him her estate. As she became very ill, she wrote to relatives abroad and asked them to come and visit her and take her to a solicitor to make a new will. The new will left everything to her blood relatives. The neighbour had genuine affection for the deceased and found it hard to think ill of the dead. He launched a claim for undue influence, claiming that the relatives had plotted against him, which was bound to fail.
It is therefore important at the outset to go to a specialist and take an initial advice as to whether that is the correct way forward. In the circumstances described above, a claim for proprietary estoppel would have succeeded and avoided substantial loses. Our recent blog sets out the complex requirements of such a claim.
If you require any advice on any of the issues raised in this blog, please contact us on 020 7940 4000 or David.firstname.lastname@example.org.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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