“Judges say that your will can be ignored” ; “Woman cut out of mother's will as she eloped with boyfriend wins legal battle for share of estate”; “What is the point of a will if your wishes can be defied?”; “UK court overturns will of mother who had disinherited child”. These are just some of the headlines that have appeared in the pages of our national newspapers in the last few days following the Court of Appeal decision in the case of Ilott v Mitson & Ors (“Ilott”).
When Melita Jackson died in 2004 leaving the majority of her net estate (worth £486,000) to three animal charities and disinheriting her only daughter, Heather Ilott, who knew that the administration of the estate would still not be completed over a decade later. Ms Ilott, herself a 50 year old married mother of five reliant on state benefits to make up three quarters of the family income, contested the will despite having been estranged from her mother for over 30 years. At first instance, the District Judge concluded that the deceased did not make reasonable financial provision for her daughter (under the Inheritance (Provision for Family and Defendants) Act 1975 (“the Act”)) and awarded Ms Ilott £50,000. Ms Ilott appealed this decision, on the basis that the award was too small, resulting in the decision being overturned and a finding in favour of the three charities. Ms Ilott appealed again and the Court of Appeal once again ruled in her favour but remitted the case back to the High Court to determine the issue of quantum.
In the High Court Mrs Justice Parker held that the judge at first instance was “not manifestly wrong, or even wrong, in taking the view that notwithstanding that the claimant and her husband and family lived in straitened circumstances, the fact they had done so for so many years did not justify an award which improved their circumstances” and refused to increase the award. Ms Ilott appealed the decision. The issue on appeal as to the quantification of the award was “whether reasonable financial provision can and should be made for the appellant’s maintenance which relieves her everyday living expenses without effecting her state benefits”. Lady Justice Arden in the Court of Appeal concluded that they should (Lord Justice Ryder and Sir Colin Rimer agreed) and awarded Ms Ilott 143,000 to acquire a property (relieving her of rent liability) plus the reasonable expenses of acquiring it and an option to take a further capital sum of £20,000.
In considering a claim under the Act, a Court must have regard to the following factors as outlined in section 3(1) of the Act:
- the financial resources and needs of the applicant;
- the financial resources and needs of any other applicant;
- the financial resources and needs of the beneficiaries;
- any obligations and responsibilities of the deceased towards any applicant and any beneficiary;
- the size and nature of the estate of the deceased;
- any physical or mental disability of any applicant or beneficiary;
- any other matter, including conduct, which the court may consider relevant.
In my previous blog 'Inheritance claims by children - on the rise?' I expressed a view that the decision in Ilott (at that time remitted back to the High Court to determine the issue of quantum) had changed very little. The Court of Appeal had emphasised the need to follow closely the words of the Act removing any earlier questions as to whether the deceased had a moral obligation to leave money to their children, or whether they ought to have done, and concentrated on whether the provision made for the applicant was reasonable.
The latest decision does little to alter my opinion. In determining whether reasonable financial provision has been made the court must consider (amongst other factors) the competing needs of the beneficiaries and in Ilott were faced with a mother of five plainly in financial need alongside three charities with no individual discernible needs. It should also be noted that whilst the Court of Appeal did increase the original award it still amounts to less than 50% of the deceased’s estate.
The Ilott decision is unlikely to significantly impinge on the future of testamentary freedom in England and Wales. Claims by adult children may increase in the short term but Ilott has by no means opened the floodgates. Each case will remain fact sensitive and will depend on the factors outlined in Section 3(1) of the Act.