Supreme Court Ilott judgement.

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  • TW1234
    TW1234 Posts: 209
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    There is no requirement in law for the testator to make any provision, that lies with the court if one of the qualifying people makes a claim.
    Agreed, but in practice it does mean that a testator does not have power to ensure that a child (even when adult) can be disinherited, as if the testator does not make reasonable provision for them, even if it would be reasonable to not do so, the court can do so.

    This will surprise many and destroy a common belief.
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    TW1234 wrote: »
    Agreed, but in practice it does mean that a testator does not have power to ensure that a child (even when adult) can be disinherited, as if the testator does not make reasonable provision for them, even if it would be reasonable to not do so, the court can do so.

    This will surprise many and destroy a common belief.
    Indeed. However, the testator can, either in the will, or by giving an explanation to the solicitor who drafts the will as to why they wish to disinherit particular person(s). I am told it is now standard practice. Certainly my solicitor has asked for my rerasoning even though I have only distant cousins as my closest family. If such person(s) then made a claim the Court would, AIUI, look at the reasons to see if they justfied the testator's actions. This seems a reasonable way to deal with the problem.
  • FreeBear
    FreeBear Posts: 14,421
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    There is no requirement in law for the testator to make any provision, that lies with the court if one of the qualifying people makes a claim.

    And the judge still has to base his decision on the seven Sec.3 tests of the Inheritance Act. namely -
    (a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

    (b)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;

    (c)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;

    (d)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;

    (e)the size and nature of the net estate of the deceased;

    (f)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;

    (g)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.

    Just because Ilott got £50,000, there is no reason to expect the next case to go the same way. Indeed, if one is to look at another similar claim (a disinherited daughter, disabled, and reliant on state benefits), the judge dismissed the case - http://www.bailii.org/ew/cases/EWHC/Ch/2014/3614.html
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  • konark
    konark Posts: 1,260 Forumite
    If the Ilotts are unemployed the 50 grand is likely to take them well over all the thresholds for means-tested benefits, so they are going to have to spend it on everyday living until they are down to their last £6,000.
  • Pollycat
    Pollycat Posts: 34,582
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    konark wrote: »
    If the Ilotts are unemployed the 50 grand is likely to take them well over all the thresholds for means-tested benefits, so they are going to have to spend it on everyday living until they are down to their last £6,000.

    It said this:
    The sum was increased by the appeal court in 2015 - £140,000 to buy her housing association property, and another £20,000 structured to allow her to keep her state benefits.
    here:
    http://www.bbc.co.uk/news/uk-england-39278921

    I think the bit in bold ^^^^ is very wrong.
    Any other person claiming benefits would be investigated for fraud.

    Obviously that decision in the link has now been overturned.
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    Pollycat wrote: »
    It said this:
    here:
    http://www.bbc.co.uk/news/uk-england-39278921

    I think the bit in bold ^^^^ is very wrong.
    Any other person claiming benefits would be investigated for fraud.

    Obviously that decision in the link has now been overturned.
    There is nothing fraudulent at all. Structuring the award simply means that it would be made in several stages. That would mean that the limits that would have caused benefits to be reduced would not be breached.nor would the rules on deprivation of assets apply. Not to have done so would have meant that the effective value of the ward would have been negated by loss of benefits.
  • Pollycat
    Pollycat Posts: 34,582
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    edited 18 March 2017 at 10:46AM
    There is nothing fraudulent at all. Structuring the award simply means that it would be made in several stages. That would mean that the limits that would have caused benefits to be reduced would not be breached.nor would the rules on deprivation of assets apply. Not to have done so would have meant that the effective value of the ward would have been negated by loss of benefits.
    You've misunderstood - I didn't say it was fraudulent.

    My point was - if I were to claim benefits and had £20k stuffed away, I'd be investigated for fraud.
    This woman was given £20k but in such a way that she could keep claiming benefits.
    If I was on benefits and someone left me £20k in their will, would I be allowed to structure the provision of that £20k so it didn't affect my benefits?
    No, I wouldn't.
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    edited 18 March 2017 at 3:20PM
    Pollycat wrote: »
    You've misunderstood - I didn't say it was fraudulent.

    My point was - if I were to claim benefits and had £20k stuffed away, I'd be investigated for fraud.
    This woman was given £20k but in such a way that she could keep claiming benefits.
    If I was on benefits and someone left me £20k in their will, would I be allowed to structure the provision of that £20k so it didn't affect my benefits?
    No, I wouldn't.
    I think the misuderstanding is yours. The court can order the payments to be made at intervals so that the limits are not breached. She will not get the whole awrd in one go. If that was not done it would negate the value of the award. There is nothing unusual or unreasonable about that.With a legacy the whole amount is due in one lump sum and there is no mechanism to stage it.
  • iammumtoone
    iammumtoone Posts: 6,377
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    I think the misuderstanding is yours. The court can order the payments to be made at intervals so that the limits are not breached. She will not get the whole awrd in one go. If that was not done it would negate the value of the award. There is nothing unusual or unreasonable about that.With a legacy the whole amount is due in one lump sum and there is no mechanism to satge it.

    Are you saying if someone wanted to leave a large sum of money to a person who claimed benefits, could they legally word the will in a way that 'drip fed' the money to the beneficiary to allow them to continue claiming benefits? :eek:

    Surely that can't be the case, that is so wrong.
  • Pollycat
    Pollycat Posts: 34,582
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    I think the misuderstanding is yours. The court can order the payments to be made at intervals so that the limits are not breached. She will not get the whole awrd in one go. If that was not done it would negate the value of the award. There is nothing unusual or unreasonable about that.With a legacy the whole amount is due in one lump sum and there is no mechanism to satge it.
    No it's not mine.
    My point was - if I were to claim benefits (means tested, that is) and had £20k stuffed away, I'd be investigated for fraud.
    Pollycat wrote: »
    If I was on benefits and someone left me £20k in their will, would I be allowed to structure the provision of that £20k so it didn't affect my benefits?
    No, I wouldn't.
    Are you saying that I am wrong about this ^^^^?
    Are you saying that what iammumtoone asks below is actually true?
    Are you saying if someone wanted to leave a large sum of money to a person who claimed benefits, could they legally word the will in a way that 'drip fed' the money to the beneficiary to allow them to continue claiming benefits? :eek:

    Surely that can't be the case, that is so wrong.
    If it is, then I agree that it is so wrong.

    'Cake and eat it' comes to mind.
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