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Ilott v Mitson again – speaking ill of the dead


The case of Ilott v Mitson continues to send shockwaves through the private client community. The original stage of this case was a claim by Heather Ilott against the estate of her late mother, Melita Jackson. Mrs Ilott won her claim and was awarded £50,000 from her mother’s estate, about 10% of its total value. Because she was on benefits, the award had the effect of stopping her benefits until she had used up the money. She therefore went back to court to request that the award be increased to such sum as would enable her to buy a property, this not having an effect on her benefits. She was refused at her first attempt but the Court of Appeal has just ruled that the award should be increased to £164,000 so that she can buy the housing association home she and her family live in.

The background to this area is as follows. It is a cherished principle of English law that a person should be able to leave his or her estate as they please; we do not have the strict rules ordained by the Napoleonic Code. However, there is no doubt that sometimes people do not make the Wills they should and the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”) was brought in to deal with these cases.

The categories of persons who may bring a claim against an estate under the IPFDA are, in brief, a spouse; someone the deceased has been living with as a spouse; a child; a person treated by the deceased as a child; and a person who the deceased has been maintaining financially. A spouse’s entitlement is, essentially, to what they would have got on divorce; the other claimants are entitled to what they need for their maintenance. This means that an adult child who is able to support themselves financially would not be successful in any claim. Over the years this hardened into the view that an adult child, unless they were disabled, could not bring a claim under the IPFDA.

The original case of Ilott v Mitson ([2011] EWCA Civ 346) changed all that. Mrs Ilott was the only child of Melita Jackson. Her father had died before she was born. There had been a rift in the relationship between mother and daughter when Mrs Ilott left home at 17 to marry Nick Ilott (who her mother disapproved of) and this was never really repaired. Mrs Ilott made a number of attempts to re-establish contact with her mother but her mother rejected them, the final straw apparently being when Mrs Ilott named one of her children after her father’s mother. Mrs Jackson then made a Will leaving her estate of £486,000 to three animal charities with which she had had no previous connection. She also left a letter explaining that she had had no contact with her daughter for many years and did not wish to leave her anything in her Will.

The matters that a court should consider in these cases are set down in the IPFDA:

  1. First, does the claimant come within the categories of persons who may bring a claim?;
  2. Secondly, has “reasonable provision” for the maintenance of that person been made for them in the Will?; and finally,
  3. Should the court make an order directing that some of the assets in the estate should go to the claimant?

The first two points are matters of fact but the final point is a value judgement. In considering this element, the judge has to consider whether the claimant can maintain themselves; what other claims there are against the estate; and the conduct of the parties involved.

In the Ilott case, there was no doubt that Mrs Ilott, as the daughter of the deceased, could bring a claim. No provision at all had been made for her in her mother’s Will, let alone “reasonable provision”, so this second ground was clearly established. Turning to the third question, Mrs Ilott lived on benefits so she did need funds for her maintenance. Because of the lack of any previous connection the charity beneficiaries had little moral claim against the estate. The judge also decided that Mrs Jackson had acted unreasonably in not accepting, over many years of a successful marriage, her daughter’s choice of husband, and in rejecting her daughter’s attempts at reconciliation. She therefore awarded Mrs Ilott £50,000 from her mother’s estate.

This case caused an absolute furore as an attack on the right to leave your estate to the dogs’ home; but read in detail, it was clear the judge thought that Mrs Jackson had been a spiteful woman who had behaved unpleasantly to her daughter and that it was the final unfairness if her daughter did not benefit at all from her estate, which after all had come from her father as well as her mother.

As mentioned above, Mrs Ilott then went back to court to have her award increased ([2014] EWHC 542) but this was initially rejected on the grounds that there was nothing wrong with the original award. However, the Court of Appeal have now re-visited the case and have awarded a greater share to Mrs Ilott so that she and her children receive a meaningful benefit, which was not the case earlier.

We have not yet seen the court’s formal judgement, but from the press reports it appears the court was very much influenced by Mrs Jackson’s unreasonable behaviour towards her daughter (the judge referred to the Will as “unreasonable, capricious and harsh”) and the lack of any justification for the gifts to the charities, which were apparently selected at random by Mrs Jackson specifically in order to thwart her daughter.

The charities are very upset by this ruling, and are no doubt considering whether to appeal to the Supreme Court. However, it is unlikely that the original ruling would be overturned – it is now just a question of how much Mrs Ilott will get.

The case therefore emphasises again the fact that the court is making moral judgements when dealing with these claims. We would remind you of the case of Wright v Waters ([2014] EWHC 3614), which came after the original Ilott v Mitson, when a daughter who had broken off contact with her mother and written to her saying that she wished her mother were dead, was not awarded anything from the estate. It is therefore important to have in place supporting evidence explaining the reason why the child is being excluded (painful though this may be). In addition, if the estate is going to charity then there should be some explanation as to why those charities have been chosen. Many people feel that how they leave their estate is their own private business; what Ilott v Mitson is telling us (again) is that this is not the case.

 

Myerson Solicitors LLP provide specialist advice relating to wills, probate, probate disputes, inheritance tax planning and powers of attorney to clients in Manchester and Cheshire.

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