The Court of Appeal has handed down the latest decision in a long-running probate dispute which has implications for anyone making a will, or disappointed by the terms of a will made by their parents. The case was Ilott v Mitson, which we previously wrote about as long ago as 2011, after the first time that it came before the Court of Appeal.
The claim then and now was brought by the daughter of the deceased who, having been estranged from her mother and entirely self-sufficient for 26 years, was then disappointed to discover on her mother’s death that she had not been left anything in her will. She therefore brought a claim under the Inheritance (Provision for Families and Dependants) Act 1975, a piece of legislation designed to ensure that reasonable provision is made for those closest to the deceased, which we are seeing relied upon with increasing frequency in the probate disputes on which Pitmans is instructed.
In an outcome which further undermines the principle that someone making a will should be free to deal with their estate as they wish, the Court of Appeal has now found in favour of the daughter, increasing the award of £50,000 previously made to her in earlier proceedings, and awarding her a total of £143,000 out of a total estate value of £486,000, with an option to draw down an additional £20,000.
The effect of the decision is to bring the English law closer to the position in many continental European countries, where the law expressly prohibits children from being excluded from a parent’s will, or even goes so far as to prescribe the minimum percentage of the estate which children ought to be left. This is of course good news for children arbitrarily excluded from a parent’s will, in a Dickensian attempt to exert control or inflict retribution. But it does give rise to a strange inconsistency which is difficult to reconcile. A person can give away all their possessions while they are alive without any formality or consideration for their nearest and dearest. Yet that same person, if instead they go to the trouble of formalising their intentions for what should happen to that property after their death, by obtaining legal advice and documenting those dispositions in writing before witnesses, might well have their wishes trampled over by the Courts and disappointed beneficiaries.
Every family situation is different, and every case that comes before the Court is decided on its own facts. Our experience though, reflected in the Court’s view in the Ilott v Mitson case, is that only careful planning and a detailed and carefully expressed will can wholly eliminate the risk of a successful claim under the 1975 Act. Without that care and consideration, the risk of protracted and expensive legal proceedings, often involving those who are also bearing the emotional burden of the death of their relative, is enormously increased.