It has been hard to escape the blaze of media publicity regarding the latest instalment in the long running case of Ilott v Mitson. This is a claim by a daughter against the estate of her estranged mother under the Inheritance (Provision for Family and Dependents) Act 1975. The mother had made it clear that she did not want her daughter to receive anything from her estate (following a falling out many years earlier) and had left everything to three animal charities. The daughter, who has five children and very little money was originally awarded £50,000, but the Court of Appeal have now increased that to a 1/3 share of the estate (worth £164,000), apparently so that she can purchase her Housing Association property.
The media reporting has been rather sensationalist, declaring that this means that people cannot leave their estates as they please, and suggesting that wishes made in wills will simply be overturned if someone does not like them. That is not what the case says.
The 1975 Inheritance Act allows a small, specific group of people (such as spouses, children and dependents) to make an application to the Court if a will does not make ‘reasonable financial provision’ for them. They have to show that there is some good reason why money should be provided from the estate – not just because it might seem fair. Other than that, you can leave your assets as you wish.
We do not have (and nor does this case impose) a system of forced heirship where certain relatives receive fixed shares of an estate regardless of what the will says. That said, a good solicitor advising on a will, will advise of the possibility of claims by close relatives and dependents and it may well be worth explaining in a side letter why you have chosen to leave someone out. A letter will not render the will completely bullet proof, but it might help the disinherited and the court to understand the terms of the will. Where there are good reasons for leaving someone out (for example where someone has 2 children and one has had significant provision made during their lifetime which will endure on death – such as the purchase of a property) this might carry weight with the court.
The reporting has also concentrated heavily on the prospect that charities might well lose out. It is my view that this is unlikely to be the case. In an Inheritance Act claim the Court will take into account who the other beneficiaries are, and their financial needs relative to the claimant, but will not simply favour any claimant over a charity. In this case, the charities retained two thirds of the estate and courts are generally unwilling to disregard the testator’s wishes entirely.
So, is this case truly law changing? Not in my view. It is newsworthy because the facts are interesting, and because it has been circling the Courts for many years, but it is simply an Inheritance Act claim by an adult child in which the court has decided that the provision made was not reasonable and has therefore increased it. I advise on many cases like this for claimants and defendants, and successfully pursue claims for provision against estates where claimants are in desperate need of funds.