The ongoing uncertainty for the Courts and Litigants – a bullet point guide to the Judgment

In a judgment running to more than 60 pages the Supreme Court in Ilott v The Blue Cross & ors has considered the operation of The Inheritance (Provision for Family and Dependants Provision) Act 1975. Despite the Act and its predecessors having been on the statute book since 1938 this is the first time it has been considered by the Courts at this level. The seven Judge court, allowing the Charities appeal, was unanimous in its conclusions which are accompanied by an additional commentary on the unhelpful and unclear nature of the Act from Lady Hale with which both Lord Kerr and Wilson agree.

This short article provides a quick summary for practitioners familiar with these claims. It sets out the key points made in the lead Judgment of Lord Hughes.

  • When dealing with the Threshold stage there is an objective focus on whether reasonable provision was made and not whether the testator made reasonable decisions – para 2 & 17
  • The a testator’s wishes and the reasonableness of the testator’s decisions may be factor for consideration under s3(1)(g) but are not determinative and there is no requirement for either the presence or absence of reasonableness in the deceased’s wishes or conduct is a requirement - para 2, 17 & 47
  • A prolonged estrangement is a factor that may justify rejecting an claim but will not necessarily do so – paras 21, 46 & 47
  • Provision for maintenance - necessarily involves provision “to meet everyday living expenses” or “necessities of daily living” – para 14, 15 & 40 - may include one off or occasional items such as repair, replacement or refurbishment of existing household items – para 40 - is not capital provision – para 14 & 15may include provision for housing – para 15 - it is more likely to be appropriate for provision in relation to housing to be by way of a life interest than a capital sum – para 15
  • The level at which maintenance may be provided is - Judged by what is appropriate in the case, not by subsistence levels – para 19 - flexible and dependant on the facts of the case – para 15

  • A qualifying relationship and need alone will not always be enough to justify the making of an award but in an appropriate case they can be – para 19 & 21

  • A claimant’s needs may be but are not necessarily the correct measure of the order that should be made – para 22

  • It is not necessary for the Courts to deal with threshold and quantum as a two stage process although they can in an appropriate case – para 23 & 24

  • The Court is required to undertake a single assessment of the applicable factors in any given case and is not required to identify what would be reasonable provision and justify adjustments to it by reference to the factors – para 34 & 35

  • The Act invites the Court to take a broad brush approach to the very variable personal and family circumstances that may arise – para 24

  • The threshold question tailored as it is to reasonableness is an objective question – para 23

  • The exercise of discretion necessarily involves a value judgment or judgments – para 24

  • The court may approach a claim by first setting out its findings of fact and then addressing the two questions (threshold and quantum/discretion) without repetition of the facts

  • An award which had little or no value to a claimant because of its effect on state benefits, especially if made in ignore of that effect, may be erroneously made – para 39 & 44

  • State benefits are a resource and their existence along with whether they are likely to continue are a relevant resource of the claimant – para 44 to 45

  • The time the facts fall on the exercise of discretion (even by an appeal Court) is the date of the hearing with any request for fresh evidence on appeal being judged on Ladd v Marshall principles – para 25

The addendum to the lead judgment points out that the case raises “profound questions” about the nature of family obligations their relationship with the state. It highlights the limited extent to which the Act makes inroads into the principle of testamentary freedom. Further it puts the Court’s discretion into the context the approach in other jurisdiction and studies of public opinion in this jurisdiction.

The addendum makes it clear a first instance Judge faced with the facts of this particular case could legitimately, applying the Act, have rejected the claim completely or made either the Court of Appeal award or the original Judge’s award. That point highlights the huge range of outcomes that are possible under the Act in any given case which gives rise to a high level of uncertainty for litigants.

The Judges who participated in the addendum regret the unsatisfactory state of the law which fails to give any guidance as to how those “profound questions” should be answered by the Courts and effectively invite further consideration by the Law Commission and guidance from Parliament.