Ilott v Mitson – have the CA gone too far?

Melita Jackson died in 2004 leaving some £486,000. She was a widow and had an only daughter, Heather Ilott, then 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.

Heather issued proceedings 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 courts and lawyers have certainly got value for money out of the death of Mrs  Jackson. The dispute over her will has been before a District Judge who awarded her daughter £50,000, reversed by a High Court Judge on appeal, who dismissed her claim entirely, and then on to the Court of Appeal, resulting in the decision of Ilott v Mitson & Land [2011] EWCA Civ 346. This decided that an adult child could make a claim in these circumstances , and I commented on this decision in my piece at the time. So the case went back before a different High Court Judge who upheld the DJ’s order giving her £50,000, and then back to the CA who have just made the decision reported as Ilott v Mitson [2015] EWCA 797 and awarded her £163,000. A roller-coaster of a case, if a distressingly expensive one, even if Heather has been represented pro bono (ie free of charge) for most of the time.

The CA’s 2015 Decision – the law

The lead judgment is given by Lady Justice Arden, with agreement from Ryder LJ and Sir Colin Rimer. She starts off with a summary of the provisions in the Inheritance etc Act.

  • A child can apply if the will (and/or intestacy) does not make such finacial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for her maintenance. A spouse or civil partner is not limited to “maintenance”. Children are.
  • Maintenance isn’t defined in the Act. But in re Dennis dec’d (1981) it was explained by Browne-Wilkinson J. He said (and the CA approved):

But in my judgment the word “maintenance” connote only payments which directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him.

  • s2 allows the court to award payments of periodical payments or a lump sum.
  • s3 sets out the factors to take into account in deciding what is reasonable financial provision

3 (1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)     the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)     the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)     any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)     the size and nature of the net estate of the deceased;

(f)     any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)     any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant…

  • There are two other factors – the court must take into account the facts as known at the date of the hearing, and it must take into account the applicant’s earning capacity and their financial obligations and responsibilities.

The facts

I don’t normally copy large bits from judgments into my pieces, but here it sets out the facts and the court’s views very clearly:

  • The primary reason why Mrs Jackson made no provision in her will was that she was estranged from the appellant and it is necessary to understand how this came about.
  • The appellant was the only child of Mr and Mrs Jackson, who were married on 3 March 1956. Mr Jackson was killed in an accident at work about three months before the appellant was born. His employer made a substantial payment to Mrs Jackson which she used to pay off the mortgage on the home. She was brought up by her mother.
  • In November 1978, aged 17, the appellant left home without her mother’s knowledge or agreement to live with Nicholas Ilott, whom she later married on 30 April 1983. Throughout her marriage she has lived with her husband at 16 Edward Cottages, Great Munden, Ware, Hertfordshire (“the Property”).
  • Mr Ilott and the appellant have five children. At the time of the trial, two were under 18. At the date of the second hearing before this court, only one of their children lived at the Property but she is shortly going to University away from home. The Property is rented from a housing association but Mr Ilott and the appellant have the right to buy it at a discounted price, held at £143,000 until the end of July 2015. For reasons not explained to us, there had been a substantial drop in the value of the Property.
  • The appellant and Mrs Jackson were estranged. There were three attempts at reconciliation, all of which failed. On the last occasion, it failed because Mrs Jackson took offence that the fifth child had been given the name of the appellant’s paternal grandmother, whom Mrs Jackson did not like. I do not intend to go through the evidence about responsibility for the estrangement. It is enough to say that DJ Million held that Mrs Jackson had acted in an unreasonable, capricious and harsh way towards the appellant but that both sides were responsible for the failure of these attempts.
  • When Mrs Jackson died, she left a will made in April 2002 which made no provision for the appellant or any member of her family. It is common ground that Mrs Jackson had no connection with the Charities during her lifetime. The value of the estate at the date of the trial was £486,000. There has been little change in that amount since the date of the hearing before DJ Million.

And from further down:

  • On appeal, Parker J admitted evidence relating to the appellant’s husband’s attendance at spiritual meetings which was a further source of income. It appears to have been common ground that this income was small and thus made no real difference to the case. Parker J also admitted in evidence a letter from Mrs Jackson to her relatives confirming that the source of funds used to clear the mortgage on her home, which constituted about half the estate, was a payment made by her husband’s employer after his death. This evidence has given rise to argument about whether weight should be attached to the fact that this fund was so derived and whether it was to be inferred that it was intended for the appellant’s benefit.
  • In the course of her judgment, Parker J observed that as a result of the appellant’s straitened circumstances the appellant had never had a holiday, had difficulty affording clothes for the children and was limited in the food she could buy and that much of what she had was old or second-hand (Judgment of Parker J paragraphs 45 to 46).

 The courts below

DJ Million had awarded her £50,000 and Parker J had rejected her appeal from this. It was a matter for a judge’s discretion and so the CA could only upset the decision if the DJ made an error in law, such as applying the wrong test or failing to take into account relevant matters, or taking into account irrelevant matters, or reaching a decision that no DJ should have reached. The mere fact that the judges in the CA would have given the daughter more was not enough. The judge below had to be wrong.

To nobody’s surprise, given the comments that they had made so far, they held that the judge below had been wrong, because he had reduced the award to take account of the daughter’s modest expectations, and because he had failed to properly consider the affect of the award on her benefit entitlement. He had not been helped by a rather unrealistic wish-list put in by the daughter’s legal team at that stage asking, among other things, for enough money to buy her rented house (£186,000) and give her an income of £10-27,000 pa for life. This would exceed the value of the estate. But both decisions were incorrect: you should not have your claim marked down because you have lived modestly, and the benefit position is serious and needs to be properly addressed.

The daughter was receiving tax credits of about £8,000 pa and housing and council-tax benefit of £5,000 pa. If she acquired capital over £16,000 the housing and council-tax benefit (but not the tax credits) would be cut off, and so an award of £50,000 would be spent in a few years in merely making up this loss. That substantially reduced its value, and made it unreasonable. And the CA decided to make the fresh award itself, rather than sending everybody off for a 5th trial.

The CA’s award

This piece is long enough and I’m not going to set out all the arguments in detail. You can read them in the judgment. But the most important factor was the the daughter’s legal team (acting pro bono) had taken a much more realistic view. They were asking for the funds to buy their rented social housing home (now £143,000 with a discount) which would save rent of £4,750 odd pa, and give her the flexibility of moving to a less isolated location in the future, and either a modest capital sum of £50,000, or a modest additional amount to allow her to renew and replace items as they age and break, and have occasional holidays.

The court went through the factors in s3 set out above. They repeated that since re Hancocks dec’d (1998) if not before the courts have made awards to adult children without handicaps. At the end they considered the lack of expectation of benefit, which they considered mrginal, given that the charities had no expectations either (having had no connection with the mother), and the mother’s wishes.

The comments here are worth giving in full:

Mrs Jackson’s testamentary wishes: Ms Stevens-Hoare submits that the judge was wrong to pay such high regard to the deceased’s testamentary wishes. There was no other beneficiary’s needs to which the court had to pay attention. Since the trial judge had found that it was unreasonable to exclude the appellant, there had to be consideration of reasonable provision. Ms Reed submits that DJ Million was correct to have regard to the deceased’s testamentary wishes: see per Oliver J in Re Coventry dec’d [1980] Ch 461 (“An Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases.”).

In my judgment Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only. In my judgment that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation.

After some futher consideration of the figures the court awarded £143,000, being the cost of buying the house plus a modest further £20,000 which could be drawn down in stages so as not to affect her benefits.  So she got there in the end.

But?

There has been a lot of concern about the result, especially from charities, who reckon that they might lose a substantial amount of their legacy income from challenges from other family members and the reluctance of testators to take the risk of claims of this sort. An award of £50,000 would have been some 10% of the estate, but this is almost exactly 1/3 of it. And the cost of 5 hearings cannot be cheap either. The published judgment doesn’t give the costs order, but the charities may well have had to pay everybody’s costs all the way. There is some talk of an appeal to the Supreme Court.

For myself, I doubt it. The Inheritance etc Act dates from 1975 and clearly gives the courts power to make awards to provide maintenance to a number of classes of people, including children of the deceased. It doesn’t qualify this power to exclude adult children without disabilities as previous legislation had. If the courts didn’t generally make awards in their favour, then the courts were wrong.  If they want to change this decision then they will have to go to Parliament to do so.

And this case is unusual, in that there were no other beneficiaries, or indeed relatives, to take into consideration. If Heather had a sister then it might not have been unreasonable to have given the sister most of the estate, and very hard to overturn on the facts. Remember, the will can only be attacked if it fails to give reasonable financial provision for a child’s maintenance. If the child, probably in their 50s when their parent dies, is working, and has supported themselves for many years, it will be difficult to prove that this threshold has been reached.

Guidance

It’s hard to add to what I said in my piece from 2011, following this case’s last excursion to the CA:

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 courts.
  • 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 of the estate to charities then at least choosing 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. So care is needed.

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.

Finally

We are all aware of the greatly increased number of Inheritance Act claims, and other challenges to wills, that have been made in recent years. Whether it is the result of the financial downturn in the economy as a whole, or just among litigation lawyers, is a matter of debate. But is is clearly there, and yet the sky has not fallen in.

In Victorian times a father could disinherit his family and leave everything to a charity, or his mistress. That has not been the case for a long time, and most people regard that as progress. Is it wrong to feel that when you die you should look after your family before giving large amounts to charities and others?

PS

The Supreme Court has just (2.3.16) given leave to the charities to appeal from the CA order. The hearing might be 12 months away, but this is clearly not the end of the road, yet.

 

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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.

7 thoughts on “Ilott v Mitson – have the CA gone too far?”

  1. Interesting case. Thank you for sharing the case and the results. I think it’s important to take care of your family when you pass.

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