There has always been somewhat of a tension between the recognition of the law in England and Wales that individuals are free to dispose of their assets by will in whatever way they see fit and, on the other hand, the fact that the provisions of the Inheritance (Provision for Family & Dependants) Act 1975 (“the Act”) provides a means by which such testamentary wishes may be modified by the court.

Testamentary wishes and intentions

In the Supreme Court’s decision in Ilott v The Blue Cross [2017] UKSC 17 in March 2017, the court was keen to emphasise that weight should be given to the deceased’s own testamentary wishes and intentions. In that case, the deceased had chosen to leave her estate to various charities rather than her daughter with whom she had been estranged for many years.

To try to achieve this, Lord Hughes in his judgment at paragraph 47 gave guidance by saying “the deceased’s wishes may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all the other relevant factors. It is assumed that he was intending to refer to Section 3(1)(g) of the relevant factors for the court to consider when determining a claim under the Act. Section 3(1)(g) provides that the court must consider “Any other matters including conduct which in the circumstances of the case the court may consider relevant”.

Cases since Ilott

Despite the clear emphasis in Ilott it is perhaps surprising that there was little or no mention of testamentary freedom as a factor taken into account in the first few judgments for claims under the Act since publication of the judgment.

By way of example, in Nahajec V Fowle on 18 July 2017, His Honour Judge Saffman cited Ilott but without referring to testamentary freedom at all.

In Ball v Ball on 2 August 2017, His Honour Judge Matthews barely mentioned testamentary freedom and when he did only as a principle which was subject to the Act.

In Thompson v Elverson on 29 March 2018, His Honour Judge Jarman QC did not expressly refer to testamentary freedom at all but he did examine the deceased’s reasons and motive for making the will as well as the accuracy of the facts relied on by the deceased.

In Wellesley v Earl Cowley on 11 January 2019 Deputy Master Lingwood referred to paragraph 47 of Lord Hughes’ judgment in Ilott and testamentary wishes in the context of his evaluation of the Section 3(1)(g) factor. He also examined in detail the reasons for the deceased’s estrangement from the adult daughter and the reasons for only giving her £20,000 in the will.

What can we conclude?

It appears from the pattern which has emerged over the last 24 months since Ilott was handed down that Judges are prepared to consider the deceased’s testamentary wishes as part of their consideration for the reasons for the testamentary provision. However, prospective applicants should not view Ilott as having automatically created an additional hurdle for them to surmount in terms of overriding the deceased’s testamentary wishes. There is no suggestion in any of the cases heard since Ilott that there is any form of presumption that testamentary wishes will prevail or that there is any particular factor under the Act which is magnetic.

It should also be remembered that all claims under the Act are fact sensitive and so it may be in certain cases that the court concludes the deceased’s wishes were clearly expressed and on such reasonable grounds that particular weight should be attributed to them.

In practice, each case will continue to remain to be determined on its own individual facts and the potential strength of the emphasis on testamentary freedom may well not be fully realised unless and until Parliament finds time to undertake a full review of the factors for consideration under the Act.