“Where there’s a Will there’s a way around it” or is there?

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“Where there’s a Will there’s a way around it” or is there?

Where there’s a Will there’s a way around it” or is there? Richard Cooper of Emms Gilmore Liberson comments on the decision in IIott v Mitson.

The decision in IIott v Mitson

A deceased mother who left nothing for her estranged child in her will, instead preferring to leave her estate of nearly £500,000 to charity, has been held to have acted unreasonably having regard to her daughter’s financial needs. Accordingly, on those facts the court would re write her will so as to make financial provision for the daughter.

Of equal concern, is how the case came to be before the Court of Appeal.

Initially, the dispute started 8 years ago when the daughter, Heather Ilott obtained a judgment in 2007 that notwithstanding that she was an adult child; who was estranged; and who was not financially dependent on her late mother was entitled to an award of £50,000.

The matter did not stop there and the charities appealed.

The charities appeal was heard 3 years later in 2010, when the court held that the earlier judgment was wrong in law. The appeal Judge found that the District Judge had gone too far in allowing a claim by a married, adult daughter to succeed where the claimant’s lack of means in no sense arose from anything the deceased said, or, did but entirely from her own lifestyle decisions.

That second judgment was itself appealed by Mrs IIott to the Court of Appeal in 2011 and so the saga continued.

The Court of Appeal ruled that the District Judge was entitled to make the findings he did having regard to the Inheritance (Provision for Family and Dependants) Act 1975 and that Mrs Ilott was entitled to an award.

The Court of Appeal then sent the matter back to the High Court to decide the amount of money that Mrs Ilott should receive.
In a further appeal in 2014 the High Court dismissed an appeal by Mrs Ilott that she was only entitled to £50,000 and so Mrs Illot, on what must have involved a significant amount of deja vu on her part, sought to appeal that decision to the Court of Appeal. After an eight year court battle, Mrs Ilott was granted £164,000, a third of the estate, on the grounds that her mother did not leave “reasonable provision” for her in the will.

The Court of Appeal held
“I consider that reasonable financial provision can only be made for this appellant by providing her with the sum that she requires to buy her home….In addition, I would add to the award a further sum to provide for a very small additional income to supplement her state benefits without the necessity of an equity release”
On one analysis it might appear that this decision is likely to make it easier for adult children to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 but I doubt that. Decisions under the Inheritance Act 1975 are extremely fact specific and consequently it is difficult to apply one decision to the facts of another case.
What the case does identify, amongst other points, is that:

  • a long estrangement does not preclude a claim being made, but may make it more difficult
  • The benefits position of the claimant should be considered in detail and indeed the affect thereon of any award, but necessitous circumstances are paramount;
  • The fact that you are an adult, and have lived independently does not preclude an award;
  • The court can disregard the wishes of the will maker in considering how to apply the Inheritance Act;
  • The interest of a charity who are said to receive a “windfall” may be given less weight where there are competing interests, particularly where the charities’ legacy appears to be made out of spite rather than any real connection between the will maker and the charity.

What can be taken away from the decision is that a will maker in making his or her testamentary decisions should act reasonably; absent spite; ensure that there is ideally some real connection with those who are to benefit from the estate; and to justify those reasons with an appropriate side letter.

Richard Cooper is a member of ACTAPS (the Association of Contentious Trust and Probate Specialists)

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