Note: All previous hearings of this case reported as Ilott v Mitson
Well, the Supreme Court gave its judgment on this elderly case this morning, and decided that the District Judge who heard it the first time, back in May 2007, got it right, and that all the other hearings in between – two in the High Court and two in the Court of Appeal – got it wrong. So Mrs Ilott got £50,000 from her mother’s £486,000 estate, and the animal charities got the rest. The costs of the exercise would need to be provided for, of course, although Mrs Ilott’s team were acting pro bono throughout. However at least there is now an authoratitve decision on the area of law in question – well one would hope so, but I’m not so sure about that. More on that later.
How We Got Here
Let’s start by going back to basics. The brief facts are that Heather Ilott was the only child of Mrs Jackson, and ran away with her boyfriend, whom she subsequently married, when she was aged 17. Her mother never forgave her , and there was virtually no contact between them until her mother’s death 26 years later. During this time Mrs Ilott had 5 children, and lived with her husband in difficult financial circumstances, depending largely on state benefits, and living in social housing. When she died, the mother’s last will left virtually all her estate to three animal charities, with whom she had no prior connection, and nothing to her daughter, and indeed a direction to her executors to resist any claim made by her daughter.
The daughter made a claim for a share of the estate under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”). This allows various people – spouses, former spouses, children, and people being financially supported by the deceased – to make a claim on the grounds that the will and/or intestacy provisions did not make reasonable financial provision for them. But in the case of an applicant other than a spouse reasonable financial provision is restricted to reasonable financial provision for their maintenance. And the Act set out in s3 a number of matters which the court must take into account when it makes an order. These include:
(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.
The court hearings (all of which were under the name of Ilott v Mitson until the SC hearing) were:
- DJ Million – awarded Mrs Ilott £50,000 (about 10% of the fairly modest estate) as being an appropriate amount in the circumstances. She appealed for more and the charities cross-appealed on the grounds that she should get nothing.
- King J – allowed the charities’ appeal and dismissed the claim. Mrs I appealed.
- CA – allowed Mrs I’s appeal. Case sent back to H Ct to deal with Mrs I’s appeal on quantum.
- Parker J – dismissed Mrs I’s appeal on quantum and reinstated the DJ’s award. Mrs I appealed.
- CA – allowed Mrs I’s appeal, held that the DJ had made serious errors of law, and substituted an award of £143,000 (to buy her social housing house) and a further £20,000. The charities appealed.
- SC – appeal allowed. DJ’s award of £50,000 reinstated.
The Supreme Court Decision
This runs to 66 closely argued paragraphs and came out this morning, so I’m not going to analyse them in detail here. If you want that there are a number of other articles out already, and there will no doubt be more soon. However, the important points are:
- Maintenance has an established meaning and means provision to meet everyday living expenses, more on an income basis than a capital basis, and at an appropriate level – not limited to subsistence levels.
- Reasonable Financial Provision is an objective test. You look at what the result is, and not whether the deceased was unreasonable, or the applicant was disappointed. The case of In re Coventry got it right:
It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.
- The questions to ask are normally: (1) did the will/intestacy make reasonable financial provision for the claimant and (2) if not, what reasonable financial provision ought now to be made for him?
- These are essentially questions giving a large amount of discretion to the trial judge, and the Act plainly requires a broad brush approach from the judge to very variable personal and family circumstances.
The court went through the history of the case and in particular the decision of the CA that was under appeal. This identified two apparent errors in the original decision of the DJ, and therefore felt able to set his decision aside and look at matters anew. These were:
- He stated that as Mrs I had no expectation of receiving anything from her mother’s estate, and lived modestly, and within her limited means, any provision now must be limited. However he didn’t explain what the provision would be otherwise and how it was being restricted, and this breached the requirement to give a full reasoned judgment.
- And he did not know what effect the award of £50,000 would have on her state benefits. He made a working assumption …that the effect of a ‘large capital payment’… would disentitle the family to most if not all of their state benefits, Failure to verify this assumption undermined the logic of the award.
The SC disagreed strongly with the CA’s views on both of these matters. On the first they said (para 35) that such a two-fold explanation was quite unnecesary.
But without going through any such exercise, and yet adhering to the concept of maintenance, a judge ought in such circumstances to attach importance to the closeness of the relationship in arriving at his assessment of what reasonable financial provision requires. In the paragraphs leading up to the one criticised by the Court of Appeal, this Judge had dutifully worked his way through each of the section 3 factors. The long estrangement was the reason the testator made the will she did. It meant that Mrs Ilott was not only a non-dependent adult child but had made her life entirely separately from her mother, and lacked any expectation of benefit from her estate. Because of these consequences, the estrangement was one of the two dominant factors in this case; the other was Mrs Ilott’s very straitened financial position. Some judges might legitimately have concluded that the very long and deep estrangement had meant that the deceased had no remaining obligation to make any provision for her independent adult daughter – as indeed did Eleanor King J when it appeared that she had scope to re-make the decision. As it was, the judge was perfectly entitled to reach the conclusion which he did, namely that there was a failure of reasonable financial provision, but that what reasonable provision would be was coloured by the nature of the relationship between mother and daughter.
On the second the DJ had been presented with a wholly unrealistic wish-list by Mrs I’s counsel at the first hearing, which he described as “unhelpful” and disregarded it. However, the DJ sat regularly in the Principal Registry of the Family Division and had a good working knowledge of the effect of awards of capital on the state benefits of the recipients. Although he had not been given formal evidence on the benefit position, he had been given evidence which showed that Mrs I was managing to pay her way by failing to spend anything on the replacement and repair of the ordinary household belongings;
Mrs Ilott made a strong case for the necessity of spending a substantial sum on items which could properly be described as necessities for daily living. They included such things as essential white goods, basic carpeting, floor covering and curtains, and the replacement of worn out and broken beds. That list did not include other similar necessities such as a reliable car, nor a holiday.
In the circumstances an award of £50,000 would allow her to carry out these replacements, and this kind of necessary replacement of essential household items was not such an indulgence; rather it was the maintenance of daily living. Furthermore reasonable expenditure of this type would rapidly reduce the family’s capital below £16,000 where the cut-off for various benefits occurred. So there was nothing wrong with this part of the award either.
As the CA’s criticism of the DJ’s decision was wrong the appeal was allowed, and the DJ’s award restored. The court emphasised that the long period of estrangement had to be taken into account, although exactly how was a matter for the trial judge, and that the award under appeal, giving Mrs I about 1/3 of the estate, did not do so adequately, while an award of £50,000 did.
And there was a supplementary judgment by Lady Hale (who agreed with the main judgment as well) setting out some history, and a number of studies and reports, and a strong plea for a revision to the Act to give greater guidance to the weight to be given to the various factors set out in s3 of the Act, especially in the case of an able-bodied adult child.
And the Guidance?
Fortunately the SC can’t rabbit on for 66 paras without giving some guidance to the rest of us, and there are various things here, which I’ve tried to set out above. But the result does seem to me, at least at present, to be disappointing. We had hoped that something would have been said about the way to weigh up the various factors, and we have just ended up being told that it is a matter of judicial discretion, that different judges might decide in different ways and still be correct, and that legislative intervention is required. Not a matter of the highest priority in these Brexit-filled times.
It is useful to have the emphasis placed on the elements of “maintenance” and the fact that the test is an objective one. It is also helpful for the CA’s enthusiasm for rewriting wills to be reeled in a bit, because it makes it easier to predict, at least in broad outline, what a court is going to do. The charities are no doubt pleased with the result, and Mrs Ilott must be wondering why she appealed the 2007 decision in the first place. But it is a long way from answering all the questions, which we had been hoping for. Still, it preserves some uncertainty upon which those of us in practice can make a living – you never litigate in areas where the law is entirely clear, do you?