Ilot v Mitson

There have been numerous reports that the recent decision of the Supreme Court hearing an appeal in the case of Ilott v Mitson has returned the law to a settled state i.e. supportive of the general rule in England and Wales that you can leave your property to anyone you want in your Will subject to The Inheritance (Provision of Family and Dependants) Act 1975 which qualifies this rule by allowing adult children, amongst others, to bring a claim against the estate of someone who has died if they don’t think the deceased’s estate provides enough for them. The Supreme Court (the ultimate Court in England and Wales) has handed down its decision in this case which concerned an estranged adult daughter’s claim under the 1975 Act. Mrs Heather Ilott had been deliberately and expressly excluded from her mother’s Will. The Will left the majority of her mother’s estate of £480,000 to 3 animal charities with which the mother had no particular connection during her lifetime. Nothing had been left to Mrs Ilott because they had been estranged for many years after Mrs Ilott ran away from home with her boyfriend when she was 17 years old. Mrs Ilott and her boyfriend had subsequently married and had 5 children and lived in a council house and relied on welfare benefits. Mrs Ilott brought a claim under the 1975 Act claiming that her mother’s will failed to make reasonable provision for her. Mrs Ilott was originally awarded £50,000. The Court of Appeal tripled the award on Appeal awarding Mrs Ilott £143,000 to buy a house and a further £20,000. This decision was appealed to the Supreme Court and the decision has been hotly anticipated as the Court of Appeal award to Mrs Ilott was seen as a more generous approach to claims by adult children. Now 10 years after the case was originally heard the Supreme Court has reinstated the original award of £50,000. This case has not changed the law, the door remains open for 1975 claims and in the right circumstances claims by adult children will still succeed. The Court has a wide discretion when making awards. In Ilott v Mitson the Supreme Court emphasised the importance of limiting awards to ‘maintenance’ i.e. awarding sums which were to maintain someone’s standard of living e.g housing needs. The basic test is whether the adult child can show what might be reasonably required for their ongoing maintenance. Some have heralded the Supreme Court decision as a victory for testamentary freedom but our advice is to not be lulled into thinking that it is easier to disinherit a child. What is critical is their financial circumstances and whether the adult child has enough for their maintenance i.e. to live off day to day. Each case will be based on its own facts but there are steps you can take to make it harder for a disinherited child to challenge your Will. We always advise that your Will should be regularly reviewed and updated to take into account changes in financial circumstances and family relationships. Our firm can prepare statements from you setting out your position which can be used after you have passed away. We can advise on other methods of deterring claims. This case emphasises that you should always take specialist advice if you intend to disinherit a child even if you are estranged. The cost of expert advice at this stage will be a fraction of the cost your Estate could face if it becomes involved in costly litigation caused by a Will which fails to take into account your family circumstances. It is suspected (but not confirmed) that the legal costs in the case of Ilot will have reduced the size of the estate significantly. Harrisons have a specialist team of lawyers who can present you with all the options when it comes to making a will or managing probate. We also have an expert team of contentious probate solicitors who can advise you on will disputes and contesting a will.