Do we still have testamentary freedom?

10th August 2015

A landmark Court of Appeal ruling has left many people wondering whether we still have the freedom to leave our estate to whoever we wish.

A claim was made by Heather Ilott, adult daughter of the late Melita Jackson who died in 2004 against the estate of her mother. Mother and daughter were estranged for over 20 years after Heather left home at the age of 17. In her will Mrs Jackson left the bulk of her estate to three national charities – Blue Cross, RSPB and RSPCA; and left nothing to her daughter. It is reported that Heather was aware that her mother had made no provision for her in the will and that Mrs Jackson left instructions with her executors that if Heather decided to make a claim against the estate, her Executors should defend this as fully as possible.

In 2007, the court had ruled in favour of Mrs Ilott, stating that reasonable financial provision had not been made by her late mother’s will and awarded her a lump sum. The decision upheld by the Court of Appeal, who went on to increase the sum due to Mrs Ilott.

This case has implications for parents who either do not want to make any provision or only limited provision for their children.

While the law provides that everyone has complete testamentary freedom to leave their estate how they wish, certain persons connected to you – such as your spouse and children are entitled to have reasonable financial provision from your estate. This is because they have a moral claim to your estate. It is up to the court to examine the facts in each case to determine if an award should be made to an individual who has not been included in the will.

This case further highlights the importance of a clear and well drafted will. It should be prepared and witnessed by a solicitor, as this will help to demonstrate that you have fully considered the implications of your will and taken independent legal advice about it. If you are not making full provision for people connected to you, then in addition to your will we always recommend that that you attach a signed prepared statement setting out your reasons. Then, if your will is later challenged, the court can see your written evidence about the terms of your will.

I am keen to emphasise that the outcome of this case should not deter you from making a will. Instead it should fortify you to make your intentions as clear and legally binding as possible.

For more information contact Shelly Wainwright at Ansons Solicitors in Lichfield, Staffordshire on 01543 267 984 or email

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.