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Supreme Court to hear will dispute in Ilott v Mitson

Date:12 DEC 2016

The Supreme Court is set to hear a landmark appeal today (Monday, 12 December) which specialist will dispute lawyers say could change the law for adult children seeking to challenge their parent’s wills if they don’t believe they have been left a reasonable provision.

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The animal charities Blue Cross, RSPB and RSPCA in Ilott v Mitson, a case relating to an inheritance dispute, were granted permission to appeal to the Supreme Court earlier this year.

The Inheritance Act case made headlines in July last year when the Court of Appeal ruled that the deceased’s daughter would be awarded £143,000 to buy a house (plus expenses) and an extra £20,000.  Mrs Jackson (the deceased) and her daughter, Mrs Ilott, had been estranged for 26 years after Mrs Ilott left home aged 17 to live with, and later marry, a man whom her mother did not approve of.

The court found that Mrs Jackson had acted in an unreasonable, capricious and harsh way towards her daughter. Mrs Ilott gave evidence that she had not expected to receive anything from her mother when she died.  Apart from a small gift to the BBC Benevolent fund Mrs Jackson had left her entire estate (£486,000) to the three charities in her will, despite the fact that she’d had no connection with the charities during her life time.

Mrs Ilott applied under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision and at first instance was awarded £50,000.  Mrs Ilott appealed and was awarded a larger sum than she had received at first instance.  The award was to enable Mrs Ilott to purchase her housing association house (plus the reasonable costs of purchase) and payments up to a maximum of £20,000 structured in a way that would allow Mrs Ilott to preserve her state benefits.

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The charities are appealing this decision to the Supreme Court.  The issues for the Supreme Court to consider are:

  • Whether the Court of Appeal was wrong to set aside the award made at first instance on the respondent's claim under the Inheritance (Provision for Family and Dependants) Act 1975.
  • Whether the Court of Appeal erred in its approach to the ‘maintenance’ standard under the 1975 Act.  The Court of Appeal’s approach was first to decide whether the current living standard was sufficient. It explained: ‘This is the correct test, and the court's assessment should not be motivated by a desire to provide an improved standard of living as opposed to a desire to meet appropriate living needs. Nor on the other hand is the court bound to limit maintenance to mere subsistence level.’ The Court of Appeal had determined that Mrs Ilott’s income was not reasonable financial provision for her maintenance.
  • Whether the Court of Appeal was wrong to structure an award under the 1975 Act in a way which allowed the respondent the preserve her entitlement to state benefits.   On this point the Court of Appeal had said: ‘what the court has to do is to balance the claims on the estate fairly. There is no doubt that, if the claimant for whom reasonable financial provision needs to be made is elderly or disabled and has extra living costs, consideration would have to be given to meeting those…the same applies to the case where a party has extra financial needs because she relies on state benefits, which must be preserved.’

The Court of Appeal case generated a lot of debate at the time.  Many commented that the case made it easier for adult children who had been excluded from their parent’s will (and who had not been left reasonable provision) to mount a challenge under the Inheritance Act.  If the Supreme Court allows the charities’ appeal will this make such claims more difficult?

The case also raised some further interesting questions:

  • Is it right that Mrs Jackson’s wish to disinherit her daughter may have been upheld if Mrs Ilott had been in employment and earning enough, rather than on state benefits?

  • Is it right that the Court of Appeal seemed to suggest that because Mrs Jackson had not wanted to be estranged from her mother, the estrangement was not as relevant to whether to make an award (although still a relevant factor overall)? Does this mean that beneficiaries who are to blame for the estrangement will face more difficulties in successfully making a claim for reasonable financial provision?

  • What about the notion of ‘expectation’?

At first instance the trial judge had used Mrs Ilott’s lack of expectation to receive anything in the will as a reason to limit her award (although he did not specify by how much). However, the Court of Appeal said that the fact that Mrs Ilott had not expected to receive anything in her mother’s will was not to be given much weight as the charities had no expectation either and Mrs Ilott only didn’t have expectation because of the harsh way her mother had treated her.

Ilott v The Blue Cross and Others will be heard today by Justices Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes. The proceedings can be followed live on the Supreme Court website from 11 am.

We await the judgment of the Supreme Court. Check back here and follow us on Twitter for regular updates.