Previously, myself and my colleagues have commented on the long-running saga of the case of Ilott v Mitson. Last week the Supreme Court gave their verdict.
The background of this case is as follows:
Heather Ilott’s mother, Melita Jackson, died in 2004 leaving a will bequeathing her entire estate to various charities, and cutting out her only daughter entirely.
Thereafter, Heather Ilott made an application to the court for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. Such applications are often termed challenges to wills but they are not. By making such an application, Heather Ilott was not claiming that her mother’s will was invalid; rather, she was claiming that, despite its validity, it failed to make reasonable financial provision for her. The question for the court was whether no financial provision was reasonable in the circumstances of Mrs Jackson’s estate, and, if it was unreasonable, what provision should have been made for Mrs Ilott.
The Court which first heard the case awarded Mrs Ilott £50,000 out of an estate worth approximately £450,000. She appealed for a larger payment and the charities cross-appealed that she should not be entitled to any payment at all.
After a number of years, and on a second hearing by the Court of Appeal, Heather Ilott successfully challenged the decision to award her £50,000. The Court of Appeal instead decided to increase her award to £164,000 which was then enough to allow her to purchase her council house. The real point of contention for the charities was that the Court of Appeal indicated that charities cannot rely on any competing financial need, to be weighed up against the financial needs of any applicant. This would put them at a disadvantage in future cases. It was therefore no surprise that the charities further appealed the decision to the Supreme Court.
The judgment of the Supreme Court, published on 15 March, was that the Court of Appeal had made an error in calculating reasonable financial provision for the applicant.They chose to restore the original order made and therefore Heather Ilott’s entitlement from the estate was, on paper, reduced to the £50,000 originally awarded.
Appeal Courts in England and Wales generally only allow appeals if the original judge made an error of law. The Supreme Court held that it was entirely appropriate for the original judge to make the order he did and “just as it should not have been disturbed first time round, it should not have been disturbed this time either”.
It is worth noting that applications made under the Inheritance (Provision for Family and Dependants) Act 1975 always involve a careful consideration of the facts of any particular case by the judge. What comprises “reasonable financial provision” in any one case will differ from what it comprises in any other case, as all estates and all applicants are different.
The Supreme Court’s judgment, will be seen by many to be somewhat of a retraction of an assault on testamentary freedom. I am not convinced that Heather Ilott’s claim, nor any other meritorious claims made under the Inheritance Act 1975, can be considered assaults on testamentary freedom. In the jurisdiction of England and Wales we are far from the forced heirship regimes which apply in most other European countries. In my view the size of the estate in Ilott v Mitson, and the financial circumstances of Heather Ilott, did call for an award sufficient to allow her to purchase her council property, i.e. equivalent to that awarded by the Court of Appeal (now overturned). Many will disagree and this is surely a case which has polarised public opinion, and indeed brought the Inheritance (Provision for Family and Dependants) Act 1975 into the spotlight, albeit the subject of much misreporting.
Interestingly, the charities in Heather Ilott’s case pursued the appeal to the Supreme Court despite having come to “some arrangement” with Heather Ilott, the terms of which were not disclosed in court. We will therefore never know exactly the division of the estate monies between Heather Ilott and the charities, that is, of course, if there was anything left after legal costs.
If you require advice regarding the prospects of either bringing or defending a claim under the Inheritance (Provision for Family and Dependants) Act 1975, then contact Hannah Young on 01234 270600 or at firstname.lastname@example.org for an initial confidential discussion.