Death knell for testamentary freedom?

Sunday, 01 November 2015
Michael Young explains what the moral of Ilott v Mitson really is.

I lay no claim to originality in the title of this article. It was just one of numerous attention-grabbing headlines to appear following publication in July of the England and Wales Court of Appeal’s ruling in Ilott v Mitson.1

The validity of Heather Ilott’s claim against her late mother Melita Jackson’s estate was actually confirmed at an earlier Court of Appeal hearing in 2010. If there were going to be attention-grabbing headlines (and there were), that was the appropriate occasion. The latest hearing was to determine quantum.

Indeed, testamentary freedom has been limited within England and Wales for a considerable time. The Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) has been with us now for 40 years. And there are numerous other well-known fetters on a testator’s urge to use their will to wreak vengeance or exercise unreasonable control from beyond the grave. The courts have shown a willingness to frustrate testamentary provisions that are considered against public policy.

The 1975 Act has always given adult children the right to make a claim against their parent’s estate if they can show that they have received inadequate provision. The court looks at evidence as to the testator’s reasons behind the provision or lack thereof, including whether those reasons were mistaken or unreasonable. It will look at the needs of the claimant. It will look at the needs of the defendant beneficiaries under the will and their connection to the deceased. It will then apply the 1975 Act tests to reach a decision as to whether reasonable provision was made by the deceased for the claimant, and, if not, whether there should be an appropriate award.

Uncertainty abounds

If there is one message to be gained from Ilott, it is not the demise of testamentary freedom but rather the high degree of uncertainty involved in predicting the outcome of such cases. There are so many variables to be considered that it is difficult to predict how any judge (let alone the particular one hearing the case) will react. And therein, of course, lies the problem for advisors and their clients. Where, as in Ilott, the defendant beneficiaries are charities, one does not envy them the task of deciding on the likely outcome of such a claim and whether defending the claim represents a sensible and proper application of charitable funds. At the time of writing, the charities in Ilott have yet to decide whether to appeal to the Supreme Court.

In Ilott, the Court of Appeal has provided a degree of guidance, at least in terms of assessing quantum, but charities in particular will be concerned that, in balancing the competing claims of disappointed children and charitable beneficiaries, the absence of a connection with the deceased can not only weaken their case in terms of defending the claim, but also influence the amount of the award.

I wonder whether the position in Ilott would have been different if Mrs Jackson had established a track record of supporting the charities and taking an interest in their work? If so, how do you measure the quality of that ‘connection’? All three were animal charities. If she had adopted a stray dog from an RSPCA home, would that have been enough? Would regularly feeding the birds have done the trick in relation to the RSPB? Somehow I doubt it but, if the absence of a connection weakens the charities’ position, the presence of a connection would surely strengthen their case. Many people support their chosen charities during their lives by regular donations. Equally, I know of many people who, while supporters of the work of particular charities, do little if anything to support them until death, when they leave an appropriate bequest. Would the position be improved if those testators advised the charity of the intended bequest? Does that create a better connection?

There are many areas of law where legislation, coupled with case authority, enables an outcome to be predicted with reasonable certainty. Following Ilott, we may have a little more certainty as to the amount to be awarded in a 1975 Act case, but I fancy we are little closer to gaining any more certainty in advising clients, whether claimants or defendants, as to the merits of a particular case. And, for that reason, I doubt that the floodgates will any more be opened to claims by disappointed children than they have been since 1975.

  • 1. 1 [2015] EWCA Civ 797
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Michael Young TEP

Michael Young TEP is a Chartered Certified Accountant and heads the Trust and Tax Team at Thrings solicitors. He is Chair of STEP’s Professional Standards Committee

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