I Can Give my Estate to Charity, but Only if the Courts Let Me?


It has always been the case in this country that you are free to leave your worldly goods to whomever you please. This freedom is qualified by legislation which allows someone to claim against the estate if 'reasonable provision' has not been made for them in the Will.

I can give my estate to charity, but only if the courts let me?

Heather Illott upset her mother many years ago when she eloped at the age of 17. Her mother never forgave her and when she made her Will, she left everything to charity and specifically stated that she did not want Heather to receive anything.

Heather made a claim against her mother's estate, the court saw the situation differently and awarded her one third of her mother's estate.

Harsh But Fair?

In Heather's case, it seems that the court felt that her late mother's decision to exclude her from the Will was 'harsh'; no connection could be seen between the charity and the mother. Was this a case of her mother saying – I will give it all to charity rather than allow Heather to benefit?

Should it not be the mother's decision who should benefit from her estate? The court awarded Heather £164,000 to prevent her living a life of financial hardship. Is that morally correct?

The advice solicitors give is, if you wish to exclude your children, you are free to do so, as long as they are adult, able-bodied and you have never promised them part of your estate in return, for example, for them looking after you, giving up their home or employment to come and do so. That advice is no longer sufficient to protect someone who does not want their children to benefit.

Meaningless Advice

There have been a number of cases before the court, where children have been awarded part of their parent's estate, notwithstanding the fact that the parent stated quite clearly that they did not wish the child to benefit. It is interesting that some of these relate to estates being passed to charities rather than to children. Are the courts saying that the moral obligation towards family carries more weight than the social obligation a person feels towards a charity when they make a gift to them in their Will?

If they are, do they have the right to interfere with a person's testamentary freedom?

Should a person have to explain why they have made a decision not to allow their child to benefit?

The law which protects those who should have been provided for was not designed to replace a rational decision in relation to an adult, able-bodied child; it was designed to protect specific people: spouse, cohabitee, minor child, adult disabled child.

If the courts continue in this vein, we will lose testamentary freedom, which was not the intention of the law.

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