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Testamentary Freedom – Fact or Fiction

Andrew Jack of AMD Solicitors considers whether you can draft your will leaving your property to whomever you wish in light of recent case law.

The case of Ilott V Mitson was in the press last year and was reported with varying degrees of accuracy and scaremongering.  Reports in the press have claimed that you can now no longer leave your money to whomever you wish.  While I love a good story as much as the next man perhaps it is time to step back and see whether this decision has really restricted your ability to leave your money however you wish.

The background to the case is well known by now but, in brief, Heather Ilott was omitted from her mother’s will after her mother never forgave her for eloping at the age of 17.  On her mother’s death she discovered that she had been left nothing from her mother’s £486,000 estate, and that her mother had left it all to charities including 3 with whom her mother had no previous donating history.

The daughter was initially awarded £50,000 but both sides appealed.  The seemingly random choice of charities as beneficiaries of the mother’s estate was one of the matters on which the Court of Appeal focused when deciding on the outcome of the appeal.  In the event they awarded the daughter £150 000 to enable her to buy a home for her and her family. 

The ruling, whilst touted in the press as limiting your freedom to leave your estate to who you wish, has more to do with disinheriting a child in very specific circumstances.  Heather Ilott had lost her father before she was born and her mother inherited everything from her husband.  There was also a very specific need in Heather Ilott’s circumstances.  The court also took the view that the mother’s behaviour had been unreasonable and capricious.

While you still have the freedom to leave your estate to who ever you wish it may now be a touch riskier if you are disinheriting a child.  Anyone seeking to make a will should seek advice before doing so and if you are intending to disinherit a child this has now become even more crucial.

Andrew Jack is a specialist Solicitor in AMD’s Private Client department.  Andrew or a member of AMDs private client team can be contacted on 0117 9621205 or by email at andrewjack@amdsolicitors.com or call into one of our four Bristol offices.

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This article is provided for general information purposes only and represents our understanding of the relevant law and practice as at the date of uploading. This article should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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