When it comes to making a will, a general rule applies which means you can leave your property and possessions to anyone you wish. What happens then, if you’re unexpectedly cut out of a will?
Kimberly Mears, an associate in the disputed probate team at FBC Manby Bowdler, takes a look at a recent case which highlights this exact issue.
There is no obligation on a person making a will to include family members as beneficiaries and it may come as a shock if you’re cut out of a will.
The disappointment may be overwhelming if, for one reason or another, you had expected to benefit in some way.
This article, featured in the Evening Standard, highlights this point exactly.
Colin Johnston, 77, is the son of a self-made lord - Lord Sidney, who died in March 2017, aged 95.
According to the article, Mr Johnston was cut out of his father’s will, and a share of the family’s £2.4 million fortune, despite claims he worked loyally for the family business for 30 years. Instead, the entire estate was left to Mr Johnston’s 39-year-old niece Lady Natalie Wackett, who took over the family business in 2016.
Mr Johnston, who reportedly lives in rented accommodation and still works part-time, had expected to be left something when his father died and when he wasn’t, he decided to take his case to court.
Fighting his case Mr Johnston claimed he was an “unwanted war baby” born while his father was serving in the RAF and he believed his parents favoured his younger brother Lord Gary.
Ruling on the case in the High Court, Judge Edwin Johnson QC found favour and awarded Mr Johnston £125,000 from his father’s estate. He said: “I continue to find it remarkable and somewhat inexplicable, that a man should treat his son in this way and favour one son over the other.”
Commenting on the case, Kimberly said:
Whilst you have the freedom to leave what you want to who you want when making a will, there are some exceptions and limitations and the Inheritance (Provision for Family and Dependants Act) 1975 gives the court the power to act to remedy some possibly unfair situations and this is likely to be what’s happened in this particular case.
The legislation enables a prescribed category of applicants (in this case, the deceased’s son) to apply to the court seeking reasonable financial provision from the deceased’s estate.
The Court will analyse the merit of a claim by taking into account the factors set out within Section 3 of the 1975 Act:
• the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future
• the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future
• the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
• any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased
• the size and nature of the net estate of the deceased
• any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased
• any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
Taking the above factors into account and applying them to Mr Johnston’s case the following will have been of relevance to strengthening the claim.
• the fact that the claimant was 77 – he is therefore elderly and will have limited years ahead of him to work
• he lives in rented accommodation – this would suggest that he is of limited means as he does not own property
• he works part time – this would support the suggestion that he is of limited means as he works despite being 77
• the fact that Lady Natalie Wackett was, by contrast, much younger, capable of earning income, is of relevance as her needs are met by the estate
• the size of the estate is also of relevance as the estate was large enough to provide for the claimant whilst keeping sufficient funds in the estate to ensure that Lady Wackett was also provided for
Also key to this case was the fact the judge found one son (Mr Johnston) to have been unfairly favoured over the other, particularly when he had contributed to the family business.
If you think you have been unfairly cut out of a will and wish to discuss your situation, please contact Kimberly.