Can I exclude my daughter from my Will ? – Ilott V Mitson revisited

Regular readers will be aware of the case of Ilott V Mitson ([2011] EWCA Civ 346). This was the case that established that an adult child can bring a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”). In a recent, similar, case the court has, by contrast, upheld the mother’s right to leave her estate as she thought fit, excluding one of her children.

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 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.

Ilott v Mitson changed all that. The case concerned the estate of a Melita Jackson. Mrs Ilott was her only child. There had been a rift in their relationship 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 charity. 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:

• First, does the claimant come within the categories of persons who may bring a claim?;
• Secondly, has “reasonable provision” for the maintenance of that person been made for them in the Will?; and finally,
• 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. 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.

The recent case of Wright v Waters ([2014] EWHC 3614) at first appears to contradict Ilott v Mitson, but the different outcome can be explained by the different facts of the case.

This case concerned the estate of Mary Waters, who had two children, Patricia and David. Relations with David and his family were good at all times; the same could not be said for Mrs Waters’ relationship with her daughter. At first things were fine, but relations deteriorated badly from December 2000 (when Patricia was 50). Things went from bad to worse, and finally Patricia wrote to her mother in the following terms:

“As far as I am concerned I no longer have a mother, you are not fit to call yourself that.

You were right when you said it should have been you instead of my father – I wish it had been.”

There was no communication between mother and daughter after that. In 2009, Mrs Waters made a Will leaving her estate to various relatives, but principally to David, and excluding Patricia completely. She also left a letter explain her reasons for excluding Patricia.

Mrs Waters died in 2010 and Patricia did not attend her funeral. By this time Patricia was disabled and on benefits, and she brought a claim against her mother’s estate, no doubt relying on Ilott v Mitson.

As in that case, there was no doubt either that Patricia came into the categories of persons who could bring a claim or that reasonable provision had not been made for her in her mother’s Will. But the case fell at the final hurdle. Patricia was in need of financial assistance but the other claims against the estate were strong. The nail in the coffin, however, was her conduct towards her mother. The judge held that her conduct had been so bad as to overwhelm all the other factors so that Patricia was not entitled to receive anything from her mother’s estate.

We would probably all agree that if you write to your mother as Patricia did, and subsequently make no attempt at reconciliation, you cannot expect to benefit from a Will. What this case emphasises is that moral judgements are at the heart of the courts’ decisions under the IPFDA and that therefore close attention must be paid to the facts of each case.

Myerson Solicitors LLP provide specialist advice relating to wills, probate, probate disputes, inheritance tax planning, trusts and all aspects of family law to clients in Manchester and Cheshire.