The recent case in which Annemarie Allport brought a claim against the estate of her late husband, the racehorse trainer David Allport, has received much publicity. According to reports, Mr Allport had made a will leaving the bulk of his estate to his wife. However, the will was invalid due to being incorrectly witnessed. His previous will had made insufficient provision for his wife.
The case was decided in the High Court last year, with Mrs Allport receiving £3.7 million from the estate, including the couple’s farmhouse. Mrs Allport took her case to the Court of Appeal as she claimed that the award was insufficient for her needs. The Court rejected her argument that her husband’s company was incorrectly valued at the first hearing and dismissed her appeal.
Mrs Allport’s case was brought under the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain categories of persons to claim against an estate on the ground that the deceased’s will has made insufficient financial provision for them.
So does this mean that you cannot choose who you wish to benefit under your will? In England and Wales, compared with many other jurisdictions, there is in fact a relatively high level of testamentary freedom to draw up your will as you wish. This contrasts with the situation in France, for example, where forced heirship’ rules exist, meaning that a person’s estate has to be divided in stated proportions between family members.
In this country, if a will is made which omits to make provision for certain persons specified by the Act there is a risk that a claim could be made against the estate. The categories include spouses and civil partners, children, persons financially dependent on the deceased and partners who have lived with the deceased in the two-year period before death.
One of the tests of the necessary mental capacity to make a will is whether the testator has taken into account all those with a moral claim on his assets, and those persons falling within the Act could be argued to have such a moral claim. So, whilst it is possible to disinherit your family and leave all your worldly goods to the charity of your choice, it is sensible to take advice on the potential impact of possible claims under the Act before going ahead.