It has been five months now since the judgement was handed down by the Supreme Court in the infamous case of Ilott v Mitson, in which we were involved. The case attracted huge media interest as it was the first case under the Inheritance (Provision for Family and Dependants) Act 1975 (‘The Act’) to reach the Supreme Court.
The Act is designed to make provision for particular categories of claimants, including principally spouses and children, where the court believes financial provision should have been made for them from the deceased’s person’s estate, and it has not been.
Adult children are within the category of potential claimants able to bring a claim under the legislation. This divides opinion as on the one hand with English law being based on testamentary freedom, should testators not be able to leave their estate to whoever they wish, particularly if they have no relationship with their adult children where they are or should be capable of making their own living? On the other, should there be a moral obligation on the testator to provide for them, particularly if there is a large estate and the adult child is in need and/or otherwise relying on state benefits so effectively living at the expense of the tax payer?
Last month reported the first adult child case since Ilott v Mitson to reach court and both the facts and outcome were markedly reminiscent, Nahajec v Fowle  EW Misc 11 CC. In this case, the deceased had three adult children but chose to leave his estate to a long standing companion who had cared for him during his time of ill health. He left a letter of wishes explaining why he had excluded his children. In it, he stated he had not seen any of them for a number of years and that it was his understanding that they were all financially independent, so not requiring provision from him. The estate was valued at £264,000. One of the other children who was unable to work due to ill health also made a claim which settled for £22,000 out of court. The other child chose not to bring a claim.
The claimant was in debt, and although in work, her income did not meet her expenditure. She gave what was described as ‘compelling evidence’ that she wished to retrain and improve her skill set so she could be in a better financial position going forwards. It was also accepted that the Claimant tried to rekindle her relationship with her father, but it was her father’s choice to continue the estrangement, and he was a difficult man. The court described the claimant as being “a daughter who has very much regretted the absence of a relationship with her father”.
While the court recognised the importance of the deceased’s letter of wishes, in this case, little weight was attached to it as the court was concerned that it was based on a mistake that she was not in financial need. It also exaggerated the length of the period of estrangement.
The court had sympathy that the estrangement was not all of the claimant’s making and admired her aspiration for her financial future and she was awarded £30,000 from the estate to clear her debt and be used to fund her training.
The Act is not intended to be a mechanism by which disgruntled children can challenge their parents’ wishes simply because they feel it is unfair. But this latest case confirms that post Ilott, despite some sensationalist headlines regarding it, and while each case very much depends on its facts, adult children can still bring successful claims in genuine circumstances such as this.
This reflects the approach taken in Ilott and the other high profile case last year of Ames v Jones in which the claimant’s claim failed because the court held that her not working was a ‘lifestyle choice’ rather than a genuine inability to do so, so her father’s estate should not be required to provide provision.