Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”), can be difficult to predict. Even specialist lawyers may, at the outset of a particular case, be able to advise their client on the likelihood of success in only broad terms.

Where a claim succeeds it can be difficult to predict the award that the successful claimant will receive. This is because the judge at first instance has a significant degree of leeway in making the decision, and will have to decide the award by balancing the relevant factors. Put simply, different judges may look at things in different ways. The recent case of Ilott v Mitson is a case in point.

In practical terms for clients this means that if a matter cannot be resolved between the parties during the course of the litigation then the outcome may be unexpected. For example, it is sometimes impossible to predict how parties will come across whilst giving evidence at a final hearing. Furthermore, different judges may place differing importance to different evidential factors. This is why ADR, and in particular mediation, should always be considered.

The deceased had been living with her partner, W, at the time of her death, for almost 20 years. It was accepted that the deceased had intended to leave her principal asset (her house) to her daughter, L and that no discussion had taken place between her and W about him receiving any provision after her death. L issued a claim for possession of the property against W, who made a cross-application for relief under the Inheritance Act. The first instance decision to award W a right to purchase the property was appealed by L and the decision at first instance was upheld by the Court of Appeal.

As the partner of the deceased, the basis of W’s claim would have been that the deceased had failed to make reasonable financial provision for him.

As W was not the deceased’s spouse, his award was to be limited to what was required for his ‘maintenance’. The term ‘maintenance’ is ambiguous, although it is generally regarded as denoting payments that are required for ‘day-to-day’ expenses.

In this case W was not, in fact, in a perilous financial state. He merely wanted to purchase the deceased’s property at the open market rate (he and L disagreed at what the open market rate). The case is so interesting because the judge allowed the claim, and held that what was required for maintenance could be interpreted to mean more than just a financial benefit. Mr Justice Newey confirmed in his judgment that maintenance ‘is not necessarily confined to support with a person’s “costs of …daily living” (to quote from the Dennis case). It is capable, in my view, of referring to other forms of assistance with the requirements of daily life. If, therefore, a person is in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent “maintenance” regardless of his financial means.’

As W was awarded an option to buy the property this effectively constituted ‘maintenance’ as this would mean that he could remain in the locality where he had lived his entire life, and he would be within walking distance of the local amenities. Furthermore, he was of ill health, and it was advantageous that one of his neighbours, who was a doctor, could attend on him if there was an emergency. Thus the case appears to suggest that in appropriate cases judges may extend the concept of maintenance beyond the traditional ideas.

It was clear that at first instance the judge had found the applicant to be a sympathetic witness and had interpreted the facts in such a way as to make an award in the applicant’s favour. This case shows that there is always a litigation risk however strong your client perceives their position to be. Settlement may be unpalatable to clients who insist that the principle is more important than costs. However ultimately when a judge determines an Inheritance Act claim at final hearing the only certainty is that the outcome will be uncertain.