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Which? Legal Hour: Wills and Power of Attorney

Which Legal Hour

Have a question about starting your will or setting Power of Attorney? Which? Legal may be able to help.

We’re excited to welcome back the team from Which? Legal for our next Which? Legal Hour. For this session, we’ll be taking your questions on Wills and Power of Attorney and offering advice and guidance on how to find the best solution in the comments below.

The team is holding an hour for us at 10am on Friday, 17 December, so be sure to join us then if you can!

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How the Which? Legal Hour works

1. Post your questions in the comments below

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Please be aware we may not be able to answer all questions asked of us here, as some may require more specific advice than can be given in a public space. We’ll let you know if this is the case.

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To vote for a comment, click or tap on the 👍 thumbs up below the comment. You’ll need to be signed in with your Which? Conversation account in order to vote on comments.

3. Check back to see the answers

We’ll be posting the Which? Legal Team’s answers to your questions in the comments below on Friday 17 December. These will stay up after the event finishes, so you’re welcome to check back anytime afterwards.

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I fail to reconcile how, or why the words ‘spite’ and ‘perverse’ entered the fray.

Unless you are entirely familiar with someone’s private circumstances, it is not for anyone other than a judge in a court of law to decide whether someone is entitled to contravene the wishes of a deceased benefactor.

Such words would never be used by any professional legal representation, and I would advise anyone to steer clear of anyone using such provocative terminology when contemplating legal action or challenging someone’s will.

Beryl — In the case to which you alluded the Court found that the mother had acted wrongly in not providing a reasonable inheritance to her daughter and instead bequeathing all her estate to three animal charities. The Court decided to award a portion of the mother’s estate to the daughter notwithstanding her Will.

Apparently the mother and daughter had “always had a bad relationship” with each other. It seems to me in such circumstances that it is not an unreasonable deduction to conclude that there was an element of spite and perversity in the mother’s behaviour. I agree that it is not for me to attempt to interpret the Court’s assessment of the determining aspects of the case but the Court clearly felt there was a wrong that needed to be righted and duly did so. Only a Court can make these judgments but many people who are unreasonably dispossessed cannot afford to challenge a Will, especially if a charity is contesting the challenge.

I believe you may have been referring to a case in 2015 before the Court of Appeal where, despite the mother’s Will and clear accompanying letter – “If my daughter should bring a claim against my estate, I instruct my executors to defend such a claim as I can see no reason why my daughter should benefit in any way from my estate” – the Court ruled that the daughter, a mother of five who lived in social housing and had never had a holiday, had a real need for some of her mother’s money, unlike the charities to whom she had left £500,000. The Court awarded £164,000 to the daughter.

Under the Inheritance (Provision for Family and Dependants) Act 1975, dependants have a right to a “reasonable financial provision” under Wills and the Court’s ruling was made under S.3 of that Act. Indeed, the Judge in the Appeal Court said the mother had been “unreasonable, capricious and harsh” [more judicious than my terminology but, to many minds, synonymous].

The Court of Appeal’s decision was upheld in the Supreme Court. The case was Ilott -v- Blue Cross and Others and was heard by seven judges of the Supreme Court who were unanimous. The judgment sets out the rationale for moderating the terms of a Will in defined circumstances s if satisfied that they do not make reasonable financial provision for a limited class of persons. The 38 page judgment is here –

See – https://www.theguardian.com/lifeandstyle/shortcuts/2015/jul/28/animal-charities-relatives-bequests-will-daughter-mother
Also –
There are many other relevant references including –

John, you may interpret a case as perverse or spiteful, and that is your prerogative. However, a high court judge acting in a professional capacity, having assessed all the mitigating circumstances of a case, would never use such terminology.

The only people fully acquainted with the facts are the deceased, who presumably based their wishes on the history of the relationship, and the challenging beneficiary. I’d suggest a court may well not have the whole information available on which to base a decision, other than what they are told. I still wonder why a person’s rational decision can be overturned.

I agree Beryl, and I have never suggested that a High Court Judge would use such language. Nevertheless a District Judge, and subsequently a Judge in the Court of Appeal, described the conduct of the mother as “unreasonable, capricious and harsh” and the Supreme Court did not demur. My interpretation of her behaviour as “spiteful” and “perverse” is in line with media comment at the time and was discreetly apparent in the extremely well-developed explanation and carefully couched judgment delivered by the Supreme Court. Such emotive language would, as you say, never be used in court without justification, but without having read the transcript of the case I cannot be sure that it wasn’t in the minds of Counsel arguing the case or any of the witnesses and might even have been uttered for illustrative purposes as does happen in court hearings.

Incidentally, the press reported the case long before the Supreme Court had made the final and decisive pronouncement on the case, and, in haste, they conflated two different stages of the complex legal process. It was a District Judge in the County Court hearing the daughter’s appeal at first instance, and subsequently as the action unfolded, who examined the circumstances in great detail and made the initial finding of a justified inheritance. When, on the application of the charity beneficiaries, the Appeal Court considered the matter, it apparently — according to the Supreme Court — erred in its interpretation of some of the legal technicalities in the legislation, and their application to the particular case, although it did not change the general import of the lower court’s decision. The Supreme Court set aside the Appeal Court’s judgment [because of its flawed reasoning of the award] and upheld both the exhaustive methodology applied by the District Judge and his decision.

At no point did any of the courts deviate from the underlying principle of English law that a testator was entitled to make such bequests and dispositions of their estate as they thought fit. The only situation when an intervention might be allowed is on the specific application of a defined category of person in a dependent relationship, and the Supreme Court clarified that the only purpose of any such moderation of the Will by a monetary award, based on a proper value judgment, should be for the essential maintenance of the disinherited beneficiary [i.e. not for their general betterment or by some proportional expectation]; the Court declined to enlarge on the definition of ‘maintenance’ leaving any future cases to be determined entirely on their own merits and at the discretion of the Court at the time.

Malcolm — The law [the 1975 Act and its 1938 predecessor] specifically provides that persons in a defined category of dependent relationship to the deceased have the right to apply to the Court for a review if they have been excluded from the Will. The Court then has to determine whether the exclusion was justified [based to a degree on whether the decision to do so was rational] and what remedy is appropriate having regard to various factors.

The final judgment in the particular case discussed here disclosed an enormous amount of detail of the relationship between the mother and daughter and their behaviour over many years [in which there were faults on both sides] — far more detail than was ever revealed in the press. But, at the end of the day and many years afterwards, the case was determined on the basis of the legislative position, the test of the facts, and the methodology used to assess the justified remedy.

John, have learned in the past on several occasions when dealing with legal matters pertaining to mental health care, or lack of, one needs to present the facts not feelings.

I agree, Beryl. From my reading of the full judgment in this case I consider that the Court diligently did that. The facts were very well laid out. Lay people, commentators and the media, however, have the advantage of being able to reflect more widely on the issues and report on how they feel about them. You have commented previously on how we have the prerogative to write as we find.

John, I have no knowledge of specific cases but was simply asking whether we have the right or not to do what we choose with our estate. Apparently not.

I guess that most people assume that they are of sound mind and capable of making sensible decisions.

It says a lot about the mind of someone who is prepared to go through the hassle of a court procedure to deprive a charity of money that was never bequeathed to them in the first place.

You are correct Malcolm, your will and estate is always open to challenge by an offspring. It is possible to take out a trust fund which is much harder to contest, but you need a good solicitor to implement it.

There have been many cases where challenges by offspring have failed because they did not satisfy the tests set out in the Inheritance (Provision for Family and Dependants) Act 1975 and the charities or other beneficiaries have not had to surrender the intended bequests.

The reservation for family members and dependants has been a feature of English law since 1938 and a good solicitor or Will-writer will steer their client away from getting too close to the possibility of that law being invoked posthumously.

It also says a lot about the mind of someone who is leaving a fortune to cut out of their estate entirely a son or daughter in necessitous circumstances, notwithstanding some estrangement, but leave the fortune to charities with whom they have never shown any connexion.

I see it as a safeguard against such conduct that we have the courts to act where people have been determined to ignore the law. In consequence of such high-profile cases there are very few instances and the legal profession now has very good guidelines to hand. The limits on absolute discretion in Will dispositions are extremely few and tightly circumscribed, so for nearly all practical purposes people are unfettered in what they do with their wealth after the Exchequer has had its portion.

There are tax advantages in giving a legacy to charity. The donation will either (a) be taken off the value of the estate before Inheritance Tax is calculated, or (b) reduce the Inheritance Tax rate if 10% or more of the estate is left to charity.

The outcome of this case resulted in the daughter being allowed to keep the £50k originally awarded to her after appealing a second time for more, when she was awarded £160K, which was then challenged by the 3 charities. The Supreme Court upheld the charities appeal and the daughter had to settle with the original £50k.

”James Aspen the solicitor acting for the three animal charities said the Supreme Court had upheld a “vital principle”.

“It re-affirms in a unanimous sense from the highest court in the land that principle that we’re all free to choose who will benefit when we die.”

”Some of the judges have found that the current law is unsatisfactory and this will no doubt raise broader questions in the future.”

It also highlights the futility of such negative concepts as
avarice, greed, perversion and spite.