28 July 2015

New Court of Appeal decision in Ilott v Mitson and Others

An important Court of Appeal decision was handed down yesterday, generating headlines such as "Your will can be ignored, say judges".  How concerned should will-writers be?

The facts
Mrs Ilott brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the "1975 Act") in relation to the estate of her late mother, Mrs Jackson.  The 1975 Act allows claimants to apply to the Court for provision out of a deceased's estate if reasonable financial provision has not been made for them. 

Mrs Jackson's estate was valued at just under half a million pounds.  She made a will, which left the whole estate to various charities.   The appellant was Mrs Jackson's only child.  She and her mother had been estranged for over 25 years, since she left home at the age of 17.   The daughter was heavily dependent on state benefits and lived with her husband and five children in a housing association house which she had the right to buy.  

In 2011, a district judge held that the lack of provision made in Mrs Jackson's will for her daughter was not reasonable, particularly in light of the daughter's financial situation.  A limited award of £50,000 was made on the basis that the daughter had not had any expectation that her mother's will would make provision for her.  

There were then appeals from both sides.  The issue before the Court of Appeal this week was the quantification of the award made to the daughter.  The daughter argued that receiving £50,000 meant that she would lose a greater amount in state benefits than she would gain.  The Court of Appeal held that reasonable financial provision could only be made for the daughter by providing her with the sum that she required to buy her home (over £150,000).

The Ilott case has long been regarded by some practitioners as making it extremely difficult to deliberately disinherit an adult child, even where there is an estrangement, and this latest decision may increase this concern.  However, cases of this nature are highly fact-specific and recent High Court cases such as Wright v Waters demonstrate that estrangement may carry different weight in different cases.  Given the history of the Ilott case, it seems likely that the decision may be the subject of a further appeal in any event.

The Contentious Trust and Probate team at Forsters has significant experience of bringing and defending claims under the 1975 Act and regularly advises clients on how to minimise the possibility of challenges to their wills.  Please contact us for further information.


Authored by Emily Exton, Fiona Smith and Katherine Needham.


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