26.08.15

Can your Last Will and Testament be ignored?

Can your Last Will and Testament be ignored?

The Last Will and Testament ought to represent an individual's final wishes on how his assets ought to be shared after his death ("the testator"). In drafting a will, a testator has the "testamentary freedom" to determine not only who should benefit but also the specific interest in particular assets.. That freedom was only subject to certain specific statutory restrictions. The recent English Court of Appeal decision of Ilott v Mitson and Others handed down on July 25, 2015 underscores that a will can be successfully challenged if reasonable financial provisions are not made for certain relatives including the wife or husband or children of the deceased.

In that case, Ilott was the only child of the deceased and Mrs Melita Jackson. About three months before Ilot was born, her father was killed in an accident at work. His employer paid a lump sum to Mrs Jackson which she used to pay off the mortgage on their home. Mrs Jackson raised Ilot by herself. At age 17, Ilot left home without her mother's knowledge or agreement to live with one Nicholas Ilot whom she later married. That marriage produced five children. As a result of this, Ilot and her mother became estranged. All attempts at reconciliation failed.

When Mrs Jackson died, her will made in April 2002 made no provision for Ilot or any member of her family. She left her entire estate valued at £486,000 to be divided among certain charities. Mrs Jackson had no connection with those charities during her lifetime. Ilot applied to the Court for "reasonable financial provision" under the United Kingdom Inheritance (Provision for Family and Dependants) Act ("the Act").

There is an equivalent Act in Jamaica with similar provisions save that in local law child is specifically defined and refers to persons under age 18 or 18 and older if there are special circumstances, for example if that child has a mental or physical disability. In Jamaica, a child also includes a person pursuing a course of study or training who is over 18 but not older than 23 years old. The word "child" is not so defined or limited in the UK Act. The persons who can apply include wife or husband, a former wife or husband, a child of the deceased or any person being maintained by the deceased up to the time of death. In the case of a child, reasonable financial provision means "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance". In making that determination, the Act sets out a number of considerations for the court such as the present and future financial needs of the applicant and other beneficiaries of the estate, the size and nature of the estate or any other matter including the conduct of the applicant or any other person that the court may consider relevant.