The recent case of Heather Ilott has made headlines in the UK.
In July 2015, Heather Ilott made headlines in England after winning a lengthy legal battle to obtain a share of the estate of her late mother, Melita Jackson, after having been disinherited.
According to reports, in 1978 when Heather was just 17 years old, she crept out of the house for good. She left no note and her mother reported her missing. Heather was eventually found living with her boyfriend. Heather refused to come home and so her mother cut all ties with her. Despite several attempts at reconciliation, the parties remained estranged.
Eventually in 2004, Melita died. In her will Melita had left the whole of her estate to three animal charities and had made it emphatically clear that her daughter was to have no entitlement whatsoever. Heather applied to the court under the Inheritance (Provision for Family Dependants) Act 1975 and after a lengthy legal battle with numerous hearings and rulings, Heather was finally awarded £164,000 from her mother’s £486,000 estate by the Court of Appeal.
Under the 1975 Act, where a person dies and is survived by a husband/wife or a former husband/wife who has not remarried or a child or a child of the deceased’s current/previous spouse who was treated as a child of the family during the marriage or any other person who immediately before the death was being maintained either wholly or partly by the deceased, such person can apply to the court if ‘reasonable financial provision’ was not made for that person from the deceased’s estate.
Previously, it was generally thought that an adult child not suffering from any disability would be unlikely to be successful in obtaining an order under the Act. Traditionally, judges have been reluctant to interfere with the centuries-old principle of freedom of testamentary disposition - the freedom to leave your estate to whomever you choose – a freedom which many had thought to be largely untouchable. However, the decision in the Ilott case now casts doubt on the extent of this freedom and appears to allow judges more scope to scrutinise the decisions of the testator.
Many commentators in England have poured scorn on this decision in the Ilott case and see no reason why judges should have the power to interfere in such personal decisions. However, England is fairly unusual in that it is one of few countries in the world with such relaxed restrictions on testamentary disposition. In most of the rest of the world, there is a portion of the estate which must pass to certain close relatives regardless of any contrary provision in the will of the deceased.
In the TRNC, although foreign nationals generally enjoy freedom of disposition, this freedom is restricted for Turkish Cypriots under the Wills and Succession Law (Chapter 195 of the Laws of Cyprus). Many Turkish Cypriots living in the UK who still have property in the TRNC remain completely unaware of this and wrongly assume that, as in the UK, they can leave their property whomever they choose. Under Chapter 195, the part of a Turkish Cypriot’s estate which can be left by will is referred to as the ‘Disposable Portion’ and the rest, referred to as the ‘Statutory Portion’, must pass to certain legal heirs. The size of the disposable portion depends on which relatives survive the deceased as follows:
Where a person dies leaving a spouse and child, or spouse and grandchild, or no spouse but a child or grandchild, the disposable portion is 1/3 of the estate.
Where a person dies leaving a spouse or father or mother but no child or grandchild, the disposable portion is ½ of the estate.
Where a person dies leaving no spouse, child, grandchild, father or mother, the disposable portion is the whole of the estate.
How the Statutory Portion is divided between the surviving relatives also depends on which relatives survive the deceased. Where there is a surviving spouse, the share of the Statutory Portion which the spouse will receive is calculated as follows:
- Where the deceased left a child or grandchild, the spouse will receive 1/6 of the statutory portion
- Where the deceased left no child or grandchild, but any ancestor or descendant within the 3rd degree of kindred (parents, grandparents, brothers, sisters, uncles, aunts, nieces, nephews) the share of the surviving spouse is ½ of the statutory portion
- Where the deceased left no child or grandchild or any ancestor or descendant thereof within the 3rd degree of kindred but did leave relatives within the 4th degree of kindred (great aunts and uncles, first cousins, children of nieces and nephews) the share of the surviving spouse is ¾
- Where the deceased left no child or grandchild or any ancestor or descendant thereof within the 4th degree of kindred, the spouse shall receive the whole of the statutory portion.
The remainder of the Statutory Portion after deduction of the spouse’s share if applicable then passes to the next closest living relatives. This would be children or grandchildren of the deceased or, if none, father, mother and siblings of the deceased or if none, the nearest ancestors of the deceased or if none, the nearest living relatives of the deceased.
This may sound complicated so here are a couple of examples:
Mr and Mrs T are married Turkish Cypriots. They have 2 children, A and B. A is deceased but had a child of her own, C. Mr. T dies. Under his will, he leaves all of his estate to his wife. However, under the law, the will can only relate to the disposable portion which, in this case, because Mr. T has left behind a wife, child and grandchild, is 1/3 of the estate. The remaining 2/3 will be divided as follows: 1/6 of the 2/3 (2/18 of the total estate) will pass to Mrs. T so Mrs. T will receive 1/3 plus 2/18 = 8/18. The remaining 5/6 of the 2/3 (10/18 of the total estate) will pass to B and C equally.
Mr and Mrs Y are married Turkish Cypriots. They have no children. Mr. Y dies. At the time of his death, Mr. Y’s parents, X and Z, are both living. Mr. Y has 2 brothers. 1 of his brothers has died leaving behind two children, A and B. The other brother, C, is still living. Mr. Y’s will leaves everything to Mrs. Y. Because Mr. Y had no children, the Disposable Portion is ½ of the estate so the will operates in relation to ½. From the remaining ½ Mrs. Y will receive ½ (1/4 of the total estate) so in total Mrs. Y will receive ½ and ¼ = ¾. The final ½ of the statutory portion (1/4 of the total estate) will pass to X, Z, A, B and C in equal shares.
The Illot case and the above scenarios highlight the importance of forward planning and of taking legal advice in relation estates. Making a will is essential to ensure that our wishes are carried out as far as possible - although in the Ilott case, the wishes of the deceased were not given full effect, Heather Ilott still received far less than she would have done if her mother had not made a will at all and she had to go through a lengthy court battle to achieve this. In the TRNC, whilst Turkish Cypriots may not have full freedom of testamentary disposition, making a will is still important to ensure that their intended beneficiaries can receive as much as possible from the estate. Moreover, where no will is made covering the TRNC assets, whether the testator is Turkish Cypriot or not, the whole of the estate will be subject to the rules covering the Statutory Portion. Seeking advice from a financial adviser can also be beneficial. A financial adviser may be able to advise you on ways to dispose of your estate prior to your death whilst still leaving you with sufficient means for the remainder of your life and this can not only help to ensure that your intended beneficiaries receive as much of your estate as possible, but can also reduce your inheritance tax bill.
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This guide is intended for general information purposes only and does not constitute legal or professional advice. Naomi Mehmet & Partners does not accept and specifically excludes liability for any loss or harm which may occur to any person as a result of relying on or otherwise using this information.