The latest judgment in the saga of Ilott v Mitson & Ors [i] is a landmark decision by the Court of Appeal.

In 2004, Mrs Melita Jackson died leaving a Will giving most of her £500,000 estate to Animal Charities. She had one daughter, Heather Illott. They had been estranged for 26 years. Heather had left home aged 17 to live with her boyfriend. Mrs Jackson disapproved.

Mrs Jackson had left a detailed letter for her executors, explaining her decision to exclude Heather from her Will and that she had made it clear to Heather that she would not receive anything under the will.

By the time of the latest hearing, Heather was in her 50’s and her husband had been made redundant. They were in receipt of benefits of around £13,000 a year, and their annual income totalled £4,665.

Lady Justice Arden said “…I consider that the appellant’s resources, even with state benefits, are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who had been living independently for so many years…”

Heather succeeded on her application for an increased award for maintenance under the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFD”).

Lady Justice Arden said Mrs Jackson had been “…unreasonable, capricious and harsh…”. Mrs Illott was awarded £143,000 to buy the rented home she lives in. An additional £20,000 was granted as ‘additional income’. This was a substantial increase beyond the £50,000 granted on an earlier hearing by a High Court Judge.

The Court of Appeal stated that it was applying the law as set out in the statute, including considering all relevant factors, such as:

  • Financial resources and needs of claimant;
  • Financial resources and needs of any other claimant;
  • Financial resources and needs of beneficiaries;
  • Obligations and responsibilities of deceased towards claimants and beneficiaries;
  • Size and nature of estate;
  • Disabilities of claimants and beneficiaries;
  • Any other matter

Comment

Media comment has seized on the decision, fearing that people’s wishes in their Will are not being followed. However, it should be understood that the Court’s reasoning doesn’t simply substitute its own preference as to what it subjectively regards as “fair” in place of Mrs Jackson’s wishes. The Court confirmed previous changes in the law. It is no longer necessary for an adult child who has been excluded from a Will to show “…special circumstances or moral obligation on the part of the deceased…”

The Court has to decide whether the Will makes “reasonable financial provision” according to IPFD, for the adult child of the deceased. The trial judge is not exercising a discretion in reaching a decision, but making a value judgment based on an assessment of the statutory provisions which have to be taken in to account. It is solely the Act which sets out the factors for the exercise of the court’s decision.

Based on this judgment, people are still entitled to cut their children out of their Will if they wish. However, there will have to be good reason shown. How and why they are making other provision needs to be explained, and what their connection is to any particular charity to which they wish to leave their estate.

In view of the Court of Appeal’s guidance on IPFD, the upshot may also be that adult children who have been excluded may be encouraged to dispute a Will by arguing that they have not been left reasonable financial provision.

The Court will still take in to account any accompanying letter of wishes. If anything, these may now be more important than before, and this case can be seen in the context of its own particular and quite unusual circumstances.

To speak to someone about any of the issues raised in this article please contact Howard Rutter who is a member of our Dispute Management department.


[i] [2015] EWCA Civ 797

http://www.bailii.org/ew/cases/EWCA/Civ/2015/797.html

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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