The Court of Appeal this week handed down its hotly debated landmark decision in Ilott v Mitson & Others, causing many to query the purpose of making a will at all.
The facts, as with many contentious probate matters, are rather sad. Mrs Ilott was the daughter of Melita Jackson, now deceased. Her father had been killed in an accident at work three months before her birth. Her mother received a substantial industrial injuries benefit which had enabled her to pay off her mortgage. At 17 years old, Mrs Ilott eloped with a man who did not meet with her mother's approval. Mrs Jackson disinherited her and made it clear to her that she should not expect to receive anything from her will. Mrs Ilott made three attempts to reconcile with her estranged mother during her lifetime, but to no avail. It seems that the nail in the coffin was Mrs Ilott naming her child after her paternal grandfather, who apparently did not meet with Mrs Jackson's approval either. In what seems to have been a fit of spite, Mrs Jackson left her estate (amounting to £486,000) to a number of animal charities with whom she had no known connection whatsoever.
Mrs Jackson died on 29 June 2004. At the time of Mrs Jackson's death, mother and daughter had been estranged for some 26 years. Mrs Ilott remains married to the man she eloped with 37 years ago and has five children (now all adult, although two were minors at the time of the first hearing). The family, reportedly, is on the breadline.
Mrs Ilott, now 54, challenged her mother's will under the Inheritance (Provision for Family and Dependants) Act 1975. The sum she originally sought exceeded the value of the estate which, not unsurprisingly, she did not receive.
At first instance, the court awarded Mrs Ilott £50,000. This was upheld at the first appeal. However, the Court of Appeal has now overturned that decision and awarded her the amount she required to purchase her home plus £20,000 in respect of her further income needs. This amounts to approximately £164,000.
The award appears to be a controversial one and has led many journalists and commentators to query to what extent a testator is in control of their own estate. Plainly, the relevant legislation has been in place for some time; awards for beneficiaries who have been left out of a will are hardly news. However, making an award for an adult beneficiary who has deliberately been left out of a will - as opposed to children, whose dependency (and subsequent need for provision) is understandable - is less easy to comprehend.
As usual, the case turned on its specific facts. Mr and Mrs Ilott were living 'in straitened circumstances'. They rented a property from the Housing Association and had never been able to purchase their own home or go on holiday. They are in receipt of a number of state benefits. The other beneficiaries were all charities and therefore did not 'need' a payment from the estate as Mrs Ilott arguably did. The Court of Appeal took the view that the courts have been entrusted with the power to ensure that 'reasonable financial provision is made for maintenance only', even in the case of an adult child.
So what lessons can be learned from this case? All wills are potentially challengeable. That legacy you've been planning to leave to the local cat's home is not as safe as you might have thought. However, for will writers, whether drafting your own will or in a professional capacity, the case is a timely reminder that testators should provide clear notes as to why they are making a particular decision in their will, especially if that decision could be considered unconventional, and keep them with their will. If they wish to exclude adult children from their will, they should set out their reasons for the decision and, ideally, why they have selected the alternative beneficiaries and their connection to them. As this does not appear to be a fool proof solution, private client lawyers should advise testators clearly that their wills can be subject to challenge and, if necessary, consider advising them whether it may be sensible to make a lifetime gift if they want to be certain their gift reaches the intended recipient. Failure to provide this advice and to ensure the testator's wishes are clearly set out could potentially result in a 'disappointed beneficiary' claim in the future. Further, this may be an opportunity for contentious probate lawyers to reconsider whether some of their cases may be more winnable than they had previously thought. It certainly seems likely that there may be a flurry of such cases in the near future.