Wills, Inheritance – And Disinheritance

Even a clearly set out will and testament cannot avoid legal squabbles after death.

This was made only too evident after very lengthy and protracted probate litigation was recently finally settled by the Supreme Court. When Melita Jackson died in 2004, she surely had no idea that the clear instructions and intentions set out in her will would take 13 years to finally be approved.

In reality, it was closer to 15 years. Prior to her death aged 70, Mrs Jackson had written her last will in 2002. In that, she set out in an accompanying letter that she had clearly disinherited her only daughter. Heather Jackson had left the family home in 1978 to lived with her then boyfriend, Nicholas Ilot, whom her mother strongly disapproved of. Miss Jackson eventually married the boyfriend in question, and they remain married in 2017. However, mother and daughter never got over that and other differences during their lives. Despite several failed attempts at reconciliation (with both women blaming the other) over the intervening decades, they remained at odds, with the result that Mrs Jackson disinherited Mrs Ilot. Instead, the bulk of her estate (initially valued at £486,000) was left to animal charities, namely The Blue Cross, the RSPCA and the RSPB. After her death, Mrs Ilot challenged the will, on the grounds that it was unreasonable.

The next decade saw protracted litigation in the probate courts, with Mrs Ilot, from Great Munden, Hertfordshire, alternatively being awarded money and the charities appealing. Initially awarded a small settlement, the High Court reversed this, with the settlement being reinstated by the Court of Appeal in 2011. Following that, Mrs Ilot attempted to increase the £50,000 initially awarded to her. This was struck down by the High Court, but allowed by the Court of Appeal, who awarded her £164,000 of her mother’s estate in 2015. The charities appealed – with the result that Lord Hughes, giving the leading and unanimous verdict of a seven Judge hearing at the Supreme Court in March 2017, overturned the 2015 verdict, reducing Mrs Ilot’s share to the initial £50,000.

Throughout this protracted litigation, it was advanced that Mrs Ilot had been unreasonably disinherited by her “capricious and harsh” mother. Mrs Ilot is a mother of five, has no state pension, and was living on state benefits when she initially challenged the will under the Inheritance (Provision for Family and Dependants) Act (1975). Applying the 1975 Act, the Court of Appeal had awarded her £140,00 in 2015 to buy her housing association property, and a further £20,000 structured to avoid her losing her benefits, but designed to removed her from poverty. The Court of Appeal found that Mrs Ilot would have otherwise faced a life of poverty, living on state benefits and trying to care to four children still at home. The fifth and eldest child, born in 1983, was working at this time, with Mr Ilot working occasionally as a supporting actor.

The Court of Appeal had relied on parts of the 1975 Act. Quoting from Lord Hughes’ verdict:
(2) The key features of the operation of the 1975 Act are four … Second, only a limited class of persons may make … an application; they are confined to spouses and partners (civil or de facto), former spouses and partners, children, and those who were actually being maintained by the deceased at the time of death. Third, all but spouses and civil partners who were in that relationship at the time of death can claim only what is needed for their maintenance; they cannot make a claim on the general basis that it was unfair that they did not receive any, or a larger, slice of the estate. Those three features are laid down expressly in the 1975 Act. The fourth feature is well established by case law both under this Act and its predecessor of 1938. The test of reasonable financial provision is objective; it is not simply whether the deceased behaved reasonably or otherwise in leaving the will he did, or in choosing to leave none. Although the reasonableness of his decisions may figure in the exercise, that is not the crucial test.

Indeed Lord Hughes had started his verdict quite clearly setting out the same principle of law and equity which the animal charities had also relied on:

(1) Unlike some other systems, English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish … Otherwise the law knows of no rule of automatic succession or forced heirship. To this general rule, the statutory system of family provision imposes a qualification. It has provided since 1938 for the court to have power in defined circumstances to modify either the will or the intestacy rules if satisfied that they do not make reasonable financial provision for a limited class of persons.

Further to that, equity and probate law make generous allowances for those that leave part of their estate to charities, and it is a time-honoured tradition that many do leave money or property to any number or nature of charitable causes in their wills. However, wills are often subject to scrutiny and challenges, often over such charitable gifts.

Even if challenged under law, even if the provisions are deemed as harsh or unreasonable, testamentary freedom allows and entitles people to leave property and other assets to whoever they please after their death. Provided that the will is drafted in accordance with law, that no illegal or unlawful provisions are made, or that the provisions are not too onerous, unreasonable or ridiculous, law and equity will traditionally uphold a property drafted will. Duress or mental capacity can be called into question (and indeed often are), but the ability to choose how your property is disposed after your death is a fundamental right.

The Law of Succession, the law of equity, wills and probate, is often seen as arcane and convoluted; which indeed it is. It is also remarkably simple, as ultimately the Law of Succession seeks to enable a testator to dispose of their property in accordance with their wishes. In this, of course, archaic legal formats need to be observed. Given the complex nature of equity and probate, it is always strongly recommended to get a legal professional to draft a will.

In addition to a clearly drafted will, case law and legal precedent had long been favourably inclined to those to make a clear statement of their intentions for their property. Such a clear statement will never override a properly constituted will, but will act in support of a will, or can be the clincher in any disputes. Returning to Mrs Ilot, Mrs Jackson had been very clear and open about disinheriting her daughter, even so far as to filing an accompanying letter with her final will setting out the reasons why Heather Ilot was disinherited. That letter was relied upon in some of the court proceedings. Indeed, Lord Hughes quotes from the letter in his verdict:

(6) [Heather Ilot] did not get in touch with me and I heard from her husband’s parents that she had a baby boy. When I heard about this, I visited her in hospital and took flowers and brought up her [pram] and other presents. However, she made herself very unpleasant and wished to have nothing to do with me. Therefore she receives nothing from me at my death.

The 1975 Act and other statutes and cases additionally set out the concept of “reasonable financial provisions”, and the doctrine of maintenance. Maintenance is essentially providing assistance for those who might expect it (such as children), in the vast majority of cases tackling low or limited financial means. Maintenance is extremely broad, and is also deliberately limited under law. This is to allow for wills to be made in accordance with the wishes of the testator, as opposed to the wishes off the courts regarding maintenance of certain classes for people (e.g. spouses or ex spouses). Whilst wanting to avoid people existing in poverty when they could benefit from a will, the courts are also determined to uphold testamentary freedom.

It is that testamentary freedom which is a key part of wills and probate – and it is that very freedom that the Supreme Court upheld in ruling against Heather Ilot and in ending probate litigation overcast decade in making. Even if a will is deemed by some to be unreasonable and unfair – it was the final choice of the deceased to leave estate as they saw fit, and in that particular manner. That freedom of choice is all important – both legally and philosophically.

New Words For Intestacy & Probate – And New Meaning

Increasingly, people are not making wills, or taking steps to ensure that their possessions and assets are settled and passed on after their death. The result is pain and heartache for those left behind.

If that happens, the person is declared to be intestate. That is defined as someone dying without a will, or having an invalid will. The person’s possessions and property will be disposed of in accordance with law, and administered by a court appointed executor or administrator. Some experts and commentators predict that intestacy numbers will rise over time. Whether that proves to be accurate or not, those future cases of intestacy will be handled under new updated rules, after intestacy was altered under recent legislation.

The Inheritance & Trustees Powers Act (2014) (ITPA) came into force in October 2014, bringing with it reform to the laws surrounding intestacy, amongst other provisions. Admittedly, though, the Act did not reform intestacy rules too greatly. Previously, if the deceased left both a spouse and children, they received split between them the deceased personal property, and a Statutory Legacy of £250,000. The remainder of the deceased’s estate was divided in half, with 50% going to the surviving spouse under a trust, and 50% to the children.

Under ITPA, though, the surviving spouse still received the same Statutory Legacy, and the personal chattels – and 50% of the estate outright. The 50% remainder is now divided amongst the surviving children or descendants under a life trust.

Where ITPA fails, however, is in addressing the issue of the deceased having remarried, perhaps several times. Further, what of children from those prior marriages? As divorce becomes less of a stigma, society has seen an increasing number of divorces. It is exactly the same with people marrying again – in some cases repeatedly. Indeed, the new rules dismally fail to address the matter of cohabitation.

According to Office of National Statistics, the numbers of cohabiting couples are only on the rise. Culturally and socially, it is becoming increasingly common and accepted for people to live together in long term, stable relationships- – but remaining unmarried. Much such couples often raise children together, or have property or similar assets in their joint names – but are still unmarried.

Whatever society might think, the law still resolutely fails to recognise such couples and relationships. Currently, the legal provisions set out in  Kernott v Jones [2011] and Stack v Dowden [2007] are the only legal protections that such  unmarried couples have. Even senior judges (notably Lady Hale) admit that those protections are not sufficient. In this instance, ITPA definitely missed an opportunity to address this, and to give unmarried, long term couples some degree of legal protection and afford them legal rights.

Aside from the slight alterations in dividing up the deceased’s estate, the term popular in equity and probate of “personal chattels” also was given a new meaning. Under Section 3, personal chattels are now defined as:

 “Tangible movable property other than any such property which consists of money or securities for money, or property used at the death of the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment.”

Section 3 updates the archaic thinking of the Administration of Estates Act (1925), which defined personal chattels previously. Now, Section 3 encompasses more types of property, and more modern types of property. Further, the nature of ‘property’ is (deliberately?) not specified in ITPA – which admittedly s both a hindrance and a great help when determining matters of probate. Quite clearly, this gives court appointed executors greater scope when disposed of the assets of the intestate, as the definition of a ‘personal chattel’ is now wider, and covers more.

An interesting definition was made in ITPA regarding such personal chattels. Previously, gifts and possessions such as wine collections, stamp collections, and similar were considered chattels. As such, they could be gifted, Under ITPA, the slight but subtle changed is that those and similar items can only be considered chattels (and therefore be gifted) if they were not held as an investment, but rather as personal property. Now, before such property is gifted, or handed on to relatives, it has to be determined that it was no an investment. For some things, that could take some proving either way – and more probate litigation. During that time, the value of the “investment” could rise or fall, potentially unfairly for those involved in the litigation.

Such reforms were cautiously welcomed by private client lawyers. Many felt that the new provisions did not go far enough regarding reforming intestacy. The reforms are very subtle, and quite technical, and seemingly cause more issues without addressing existing concerns.

Of such is the power or words and writing. Having received Royal Assent, the Inheritance & Trustees Powers Act (2014) is now law, and binding upon probate and intestacy proceedings. Whatever reservations probate and equity might have, intestacy proceedings (and some related private matters) now have to disposed of in line with the wording of the Act. Whatever interpretation lawyers choose to give to the provisions of the Act – the wording itself is now law, and has to be followed, however questionable that might be.

The Stichill Baronetcy: Modern Science For Old Inheritance Laws

For most matters of inheritance, a Will or similar is vital when passing on property and money, and anything in between, as discussed in my previous post. Even ancestral disputes can often be resolved by the production of a Will or similar legal document concerning inheritance.

However, when it comes to titles and estates – sometimes a Will is not necessary, or insufficient, as a very unusual case determined recently showed.

The Baronetcy of Stichill (near Kelso, Roxburghshire) was formally granted in 1683 to Robert Pringle and the “male heirs from his body”. The 10th Baronet, former Royal Marines commander Sir Steuart Pringle, died in 2013 at 84, leaving a son, Simon Pringle, who became the 11th Baronet. Unlike a peerage, heirs to a baronetcy do not succeed to the title automatically; evidence must be provided proving the relationship between the deceased holder and the and the heir.

A descendant of the 8th Baronet, Sir Norman Pringle, has been conducting genealogical research into the Pringle clan – and made an interesting allegation. Murray Pringle, a retired accountant from Buckinghamshire, claimed from his research that there had been a “break in the line of paternity,” arising when Sir Norman Pringle died in 1919. He left three sons, Norman, Ronald (Murray’s father) and James. In1920, the widowed Lady Florence made the required formal statutory declaration stating that Norman was the eldest son of Sir Norman and was therefore  entitled to succeed to the title. This he did, passing the Baronetcy in turn on to the late Sir Steurt.

According to lawyers for Murray Pringle, the eighth Baronet was not the father of Sir Norman, the ninth baronet. As such, the son of Ronald Pringle was the rightful heir and successor – Mr Murray Pringle. Inevitably, lawyers for for Simon Pringle dismissed the claim – and also questioned the claim of the other side to use DNA evidence to prove their case.

Eventually, DNA evidence was allowed to be used. A DNA sample obtained from Sir Steurt in 2010 indicated that he was not part of the male Pringle family line. Armed with that evidence, Murray Pringle began to advance his own claim to the Baronetcy.

The rare cases of disputed claims such as the Pringle’s are now submitted to the Judicial Committee of the Privy Council. The seven judge panel (all Justices on the Supreme Court) recently ruled, that, on the evidence before them, Murray Pringle should be 11th Baronet Stichill. It was the first time that DNA evidence has ever been used to resolve a dispute over a hereditary title.

In their verdict, the JCPC found that the DNA evidence demonstrated to “a high degree of probability” that Norman was not the son of the eighth Baronet. On that basis, it was concluded that Simon Pringle was not after all the “heir male” of the first Baronet. Murray Pringle was established to be the grandson of Sir Norman the 8th Baronet, and as such the rightful heir. Further, it was found that there were no legal grounds for excluding the DNA evidence.

The judges also expressed their sympathy for “the late Sir Steuart Pringle, a distinguished officer, who faced an unwelcome challenge in his autumnal years, and also Simon Robert Pringle, the heir presumptive, who had grown up in the belief that his father was rightfully the 10th Baronet and that he would in time succeed to the baronetcy”.

Significantly, the judges also realised just how far reaching the use of DNA testing could be for future inheritance disputes by accepting DNA evidence in the Pringle case; “in the past … the absence of scientific evidence meant that the presumption of legitimacy could rarely be rebutted and claims based on assertions that irregular procreations had occurred in the distant past were particularly difficult to establish … [By contrast, now DNA evidence can] reopen a family succession many generations into the past. Whether this is a good thing and whether legal measures are needed to protect property transactions in the past, the rights of the perceived beneficiary of a trust of property, and the long established expectations of a family, are questions for others to consider.”

The admittance of DNA testing ensures that the Pringle inheritance litigation will remain a leading case for inheritance law. Admittedly, though there are few cases where DNA might be used to conclusively prove an inheritance; more commonly, a disputed inheritance arises over the deceased’s Will. An incorrect, unwitnessed, will – or indeed no will – will readily give rise to inheritance disputes.

The best way to avoid that, and to successfully pass on wealth and property is to have a clear will. Drafted correctly and properly, and signed and filed, such a document is peace of mind. It is also important to keep any will updated as and when is necessary.  Without clear direction regarding how any property, land or money is to be passed on, or if any provisions are contrary to law, any property or wealth could very easily end up with another, unintended, recipient. Alternatively – property can be seized by the Crown if declared declared intestate.

Inheritance can be made easy with a proper Will. Some inheritance matters, though, are beyond the scope of the Law of Wills & Succession – such as the Pringle Baronetcy. For those cases – there is always DNA.

Will Drafting: Trust Funds And Avoiding Family Disputes

Recent years have seen fewer people making wills. Recent years have also seen a noticeable increase in cases involving people who have died with invalid wills, or with no will.

In both cases, the result is property, possessions and money that are tied up in litigation often for years. A further result is pain and further grief for the families concerned, and family and legal disputes. If only to avoid such pain, it is important to make a will.

Wills, probate and related legal matters fall under equity, well known in the legal world for being a complicated area of law. Wills and related documents need to follow the right formats, and to have the correct provisions under law. The rules of equity in some cases even dictate the exact words that need to be used.

Equity has its origins in Norman and Mediaeval England. As such, over the centuries it has evolved into a very complex, ponderous, and above all, formal area of law. The formalities, formula and conventions of equity must be strictly kept to to ensure that your will is valid. Despite the complexities, the rules of equity are there to protect you: those archaic rules ensure that your property is classed on to whoever you decide should inherit, and in what form.

With that in mind, when considering a will and treatment, it is vital to consult a lawyer. Even researching the principles of equity and the basics of will writing, and devising your own will are no substitute for getting an expert to write such an important document for you. A layman can easily make so many mistakes, or be unaware of so many legal matters, that their will will in most cases be declared invalid, or result in upset as provisions cannot be honoured. A lawyer will be able to ensure that your will is drafted in line with current legislation and rules, allows all bequests to be honoured, and above all remains valid.

When considering who to leave what property to, a lawyer will be able to advised you that some things you may want to do might not be possible at law, for whatever reason. However, in most cases, your lawyer will be able to come up with an alternative solution or suggestion.

As has been mentioned, equity has a ritual and language seemingly all of its own. All of which, however, makes perfect sense. One example is that the vast majority of wills will start with the phrase ‘I hereby revoke all other wills and testaments.’ Although cumbersome, what that means is that that will is the latest and most current expression of your plans for your possessions and property. That in itself is a fact worth remembering; that will will remain in place, and legally enforcible, until you draft and sign a new will.

Further, the wording used is quite important, with some words having a slightly different meaning to the equity lawyer and will drafter. Take, for example, a ‘gift.’ To the layman, that is often another term for a present. To the equity lawyer, a gift is property that passes (or will pass) to another without anything expected in return, and often with all the rights of ownership. Much property and possessions can be passed to another in a will, without the rights of ownership, or with conditions attached. It is therefore important to choose the right word – and the right manner in which to bequeath your property.

Once again, that merely serves to highlight the importance of having your will written by a professional expert. Although expensive, although time consuming in hours spent in consultations – it is a small price for peace of mind, for yourself and for your family.

Indeed, whilst consulting with a lawyer, they will be able to advised you as to several things you might be able to do with your possessions and property, for the benefit of your family – often things you were unaware of. A good example is a trust fund. Trust funds are popularly perceived as vast sums of money inherited by the rich. That is, in reality, not the case. Under equity, a trust can be made of most property, and can be structured in a variety of different ways. For example, the family home, in some cases, can be made into a trust under equity,and passed on as such. Money or possessions can be willed to various people in complete anonymity, if you so desire, or if it is necessary.

Those examples just go to show the mysterious ways of equity, and the various ways money and property can be passed on in your will. Without a will though – it is hard for your family and friends to inherit anything as you desire. That is why it is so important to consider such matters, and to consult a lawyer regarding making a will. Not only will that bring peace of mid to you – but it will make things much easier, and less painful for your family later on.