Deleting an heir

Testamentary freedom will only be overlooked in unique circumstances but testators must help themselves by setting out their reasoning

The best-selling novelist, Wilbur Smith, has publicly said his children will not be getting any of his £100m fortune. The author's estrangement from his children has been well publicised, but in light of the recent case of Ilott v Mitson [2015] EWCA Civ 797, is this stance something that will be successful?

Under the laws of England and Wales, an individual has complete testamentary freedom. In other words, everyone has the right to leave their estate to whomever they chose. However, under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act), certain classes of family members and dependants can challenge a will after the testator's death, if they feel that inadequate provision has been made for them.

The well-publicised case of Illot v Mitson in the summer of 2015 is an example of where excluding a family member from a will can lead to challenge, and in this case, successfully so. The case was seized upon as an example that a will won't always be the 'final-say'. However, the very specific facts, in particular Mrs Illott's straitened circumstances, means the decision is less watershed than many have suggested.

Where an individual's children are grown up and self-sufficient, their ability to use the 1975 Act is limited. In the case of Wilbur Smith's children, one of his sons is documented as being a successful businessman in his own right, having sold a company for millions of pounds. There is no certainty that if he was to challenge his father's will, he would be successful. The courts have traditionally discouraged claims by able-bodied adults capable of earning their own living.

Perhaps the wider implication of Wilbur Smith's statements regarding his children is the reminder to be open about your wishes. In the case of Illot v Mitson, the judge commented that the deceased had been 'unreasonable, capricious and harsh'. This is a warning to testators to be careful with their reasoning for excluding a beneficiary.

Sadly, it is not uncommon for there to be breakdown in the relationship between parent and child. Where the parents' marriage has failed and the children have sided with one parent over the other, this often leads to the exclusion of close family members in a will.

Many clients who have spoken to me about what they really want to achieve with their estate after their death, versus what they feel they ought to do. Having just finalised an estate where following the death of a parent, the adult children and second wife descended into bitter acrimony over everything down to the pots and pans in the kitchen, it was a reminder of the need for openness and frank discussions with family members about how assets are to be distributed.

When drafting a will I often discuss with my clients the need for a detailed letter of wishes explaining what they envisage happening with their estate. With families often being a cosmopolitan mix of second marriages and step children, a discretionary trust can be a good way of giving flexibility to the trustees over the administration of the estate. It is impossible to know at the time a will is drafted the circumstances of your children and spouse or civil partner, but a trust supported by a letter of wishes can help the trustees navigate the various situations they may face.

I have administered an estate where the letter of wishes details six different scenarios and how in each of those situations, the trustee should act. While this approach may seem extreme, it is far better to give the trustees firm guidance, instead of giving family the anxiety and expense of arguing the matter in court after death. Of course, leaving guidance and explaining rationale will not always work in the most heated of family clashes, and whether or not it does in Wilbur Smith's case will make for very interesting viewing. 

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser