The Limits Of a Will-maker’s Freedom – Nahajec V FowlerPosted: 31st July 2017

Should a person be free to leave their estate to whomever they like when they die? Or should their family have a claim despite the terms of a Will?

This is the question which has been tested in a series of cases in the English courts recently. First was the well-known case of Illott v Motson, in which the Supreme Court restricted an adult daughter’s claim, and restored most of the estate to the animal charities which the mother had intended to benefit. Illott v Motson was widely hailed as a victory for the will-maker’s right to choose, but even so the daughter ended up with about 12% of the mother’s estate.

Now the case of Nahajec v Fowler has been heard in Leeds County Court. Stanley Nahajec had not kept in touch with any of his three children since he left their mother in about 1996. His daughter Elena had tried to rekindle the relationship when she grew up, but apart from a brief period she says that he was “not there for her”. Once he put the phone down on her when she reached out to try to make contact.

Mr. Nahajec died in 2015. He left his entire estate to his friend Stephen Fowler. With his Will was a letter explaining very clearly that he did not want to leave any money to any of his adult children. Despite this, under the Inheritance (Provision for Family and Dependents) Act 1975, a child has the right to apply to the Court for a share of the estate if they can show that the parent had a moral obligation to make reasonable financial provision for them. Elena said she needed the money in order to qualify as a veterinary nurse.

The judge in Leeds agreed and awarded her £30,000, which was 11.3% of the whole estate, deliberately very close to the Ilott percentage. It is clear from reading his judgment that he was moved by Elena’s narrative of her attempts to strike up a relationship with her father and her sadness that despite this the father continued to be “not there for her”.

The 1975 Act was intended to protect dependents and spouses from destitution as a result of being unjustly disinherited. It was rare, at the beginning, for claims to be made by adult children who might have been expected to be financially independent. Now the Ilott sequence of cases is creating stronger protections for adult offspring, such that there is no way of being sure that your estate (or at least 11 or 12% of it) won’t be given to your children, whatever the terms of your Will.

Cases in Court reflect a broader feeling in society about what is fair. Perhaps the increasing tendency of judges to allow financial provision claims from adults reflects that nowadays offspring are likely to remain dependent well into adulthood. Advice columns are full of tales about adult children who still live at home because they can’t afford rent or a mortgage; about “helicopter parenting”; or about dilemmas over children’s companions and behaviour – children whom in a former generation would have been regarded as fully independent and able to make their own mistakes. We are living longer (in the West) – maybe our period of childhood and dependence is also lengthening? And what does this imply for parents’ freedom to dispose of money and possessions? In the future, might it be compulsory to provide for adult children in your Will?