Are wills any use following Ilott v Mitson?

NOTE – This piece is about the 2011 CA case. For the 2015 CA case see here. For the 2017 SC appeal see here.

Melita Jackson died in 2004 leaving some £486,000. She was a widow and had an only daughter, Heather Ilott, aged in her 40s, who had 5 children, a husband who only worked part-time, and who relied very largely on state support. Even a small part of her mother’s estate would have been very useful to her. But Melita left all her money to three animal charities, and cut out her daughter entirely.
As you might imagine, there was a considerable history of antagonism between mother and daughter, which started when the daughter eloped at the age of 17. Melita had not supported animal charities during her lifetime, and by all accounts didn’t like animals particularly.

The Proceedings
Heather issued proceedings against the charities under the Inheritance (Provision for Families and Dependants) Act 1975, on the grounds that the will didn’t provide “reasonable financial provision for her…maintenance” under s1 of the Act.
The District Judge allowed her £50,000 – about 10% of the estate, expressed as capitalised maintenance. This is hardly news – DJs make all sorts of decisions, and the charities were left with over £400,000, so they could live with this. However Heather wanted more and appealed to the High Court Judge. The charities cross-appealed on the grounds that no award should have been made at all, and succeeded. So off to the Court of Appeal for an authoritative decision.
This came out on 31.3.11 and the CA decided that:
• An adult child is entitled to reasonable provision for maintenance, even if they are estranged and capable of work, and comments to the contrary in the leading case of re Coventry are incorrect.
• In particular they don’t need to be owed a “moral obligation”.
• The decision is very largely one for trial judge in the case, based on a value judgement.
• The court needs to look at matters as a whole and the absence of other calls on the estate was a factor.
• The amount of the award was another matter. The parties were sent back to the High Court to decide the appeal on the amount with strong indications that they may get the DJ’s decision again.
The case is reported as Ilott v Mitson & Land [2011] EWCA Civ 346

The Comments
The charities, and some commentators, have made a lot of fuss on the basis that if all wills that exclude children can be rewritten then nobody is going to know where they are. At least in the old days this wasn’t going to happen for adult children. It is going to bring a lot of uncertainty and gold-digging. Charities will lose millions. It is hardly worth writing a will. The charities are considering a further appeal to the Supreme Court.
Others point out that there is a restriction to “maintenance” so it can only apply of the child needs to be maintained. It isn’t a free-for-all asking for a legacy in all cases. And the award is quite modest even here, and doesn’t look like it is going to be increased by much. The Act replaced earlier legislation that excluded claims by adult children unless they were disabled or unable to work, and the change was presumably meant to make a difference to the result. Spouses have always been able to able to ask for reasonable provision that is not limited to maintenance, and the sky has not fallen.

Who is right? – Guidance
This is an unusual case. If a testator wants to exclude a child from their will they ought to consider:
• Setting out reasons in the will or elsewhere – here there was an explanatory letter but it contained major inaccuracies and was not believed to be true by the DJ.
• Giving reasons for giving more to other beneficiaries: if one brother needs more because of his financial problems it may be reasonable to give the other less..
• Making a gift sufficient to cover maintenance, if not equality with others
• If they are going to give all or much or the estate to charities then at least choose charities they have a connection with.
• Considering lifetime gifts – a will, and the Act can only deal with what is left at death. But a gift made with the intention of avoiding an Inheritance claim can be set aside.
The converse applies if such a will is to be challenged. Important points are:
• Consider what is needed for reasonable financial maintenance.
• Does the claimant need an on-going subsidy for basic living expenses?
• Explore what other assets the claimant has, or might expect to get.
• Look at the evidence of reasons given by the testator very carefully.
These all require particular care from professional advisors, both in the preparation of the will, and in considering potential challenges. Falling down on either of these may give rise to a negligence claim. It requires specialist advice.


Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

6 thoughts on “Are wills any use following Ilott v Mitson?”

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