Implications of Ilott v Mitson for testators and beneficiaries

Implications of Ilott v Mitson for testators and beneficiaries

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Author: Naomi Neville

Applies to: England and Wales

The media has described the recent Ilott v Mitson [2015] EWCA Civ 797 Court of Appeal decision as a 'landmark ruling'. In fact, the law relating to this matter, the Inheritance (Provision for Dependents) Act 1975, has been around for many years.

It has always been important for individuals to consider the impact of this law when drafting a will, especially when considering disinheriting one or more family members. In this case, Heather Ilott's mother Melita Jackson left her £500,000 estate to the RSPCA, RSPB and Blue Cross animal charities after her death in 2004.

Mrs Ilott, now 54, had eloped to marry her boyfriend at the age of 17 and her mother had apparently never forgiven her. Despite several attempts at repairing the relationship, Mrs Ilott and Mrs Jackson had been estranged for 25 years and Mrs Ilott was aware that her mother had excluded her from her will. Mrs Ilott was eventually successful in challenging the will under the Inheritance Act 1975 after eight years of legal action.

Many reports suggest that the ruling widens the existing law to allow all adult children of independent financial means to bring challenges to their parents' wills if provision is insufficient or they have been disinherited, even when the testator had made their wishes clear.

Under the Inheritance Act 1975 it has always been possible for adult children to argue that reasonable provision has not been made for them. The courts have tended to form the view that adult children would need to demonstrate some form of financial dependence in order for any provision to be expected.

In this particular instance, an adult child with a lengthy history of estrangement from the parent, and with no financial dependency on that parent has been awarded a significant portion of the estate, contrary to the testator's expressed wishes.

The circumstances of this case are unique, and the Court of Appeal used its wide discretion to take into account many relevant facts in coming to the conclusion that Mrs Jackson had not made reasonable provision for her daughter.

Mrs Ilott, who has five children, was of limited means and was in receipt of state benefits and had no pension. In addition, Mrs Jackson had no connection during her lifetime with the charities she chose to benefit. One additional major fact considered by the Court of Appeal was that Mrs Ilott was an only child.

Although the Court did not wish to apportion blame, as there was no suggestion that Mrs Ilott wanted to be estranged from her mother, it did consider that in life (and in being disinherited) she had been treated unreasonably, capriciously and harshly by her mother.

However, the Court also concluded that as there was no financial dependence in life, there was no obligation for the Court to provide an income to fund all of Mrs Ilott's future needs but that no provision at all was clearly unreasonable.

The individual circumstances of this case are unique, such that the ruling will not have the blanket effect of 'making a will worthless' as some media reports have suggested.

However, there remain some serious implications to be taken into account by all testators when drawing up and reviewing their wills in future, particularly if the estate is significantly large.

People can still disinherit their children (although children cannot easily be disinherited under Scots law) but they will have to have good reasons for doing so and these reasons will need to be carefully documented in some detail.

Objectively held rational reasons for disinheritance may hold more weight that purely emotional reasons and testators may also be required to explain at length what connects them to the people or organisations that they have included as beneficiaries in their will.

The ruling does however reinforce the importance of taking professional advice when preparing a will and regularly revising and updating the will itself and any accompanying letter of wishes. This is especially true for high net worth individuals whose estate is likely to be substantial, but it is equally applicable to anyone making a will.

By the time rising property values, pension pot, life assurance, and savings are factored in, estates can be worth considerably more than imagined, so anyone making or reviewing their will should seek specialist professional advice.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Naomi Neville

Associate

03700 86 6838

Naomi is an experienced private client lawyer who advises on wills, trusts and powers of attorney. She has particular expertise in lifetime and post-death tax planning for high net worth individuals and is a full member of the Society of Trust and Estate Practitioners (STEP). She is also an active member of Solicitors for the Elderly and a member of the Law Society's Private Client Section.

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