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Nick Mendoza, a solicitor at Howard Kennedy, discusses how the recent Ilott V Mitson case could affect the way your clients draw up their wills.
Enshrined under English law is the principle of ‘testamentary freedom’, whereby a person is free to choose to whom they will leave their estate upon their death.
Testamentary freedom is, though, restricted by the recognition that there is a need to provide for family members in certain circumstances.
The Inheritance (Provision For Family and Dependants) Act 1975 (the ‘Act’) provides a statutory framework by which a family member or dependant can make a claim against the estate of the deceased in circumstances where no provision, or inadequate provision, has been made for them under the terms of the deceased’s will, or under the intestacy provisions that come into effect where the deceased failed to leave a will.
The case of Ilott v Mitson involved a claim brought under the Act. Melita Jackson (the ‘Deceased’) died on 10 July 2004. Under the terms of her will she left her estate to be divided between three animal charities – the Blue Cross, the RSPB and the RSPCA. Her estate was worth £486,000.
The Deceased made no provision for her only daughter, Heather Ilott. The Court at First Instance heard that Mrs Ilott had left home in 1978 when she was 17 years old. Mrs Ilott had seen the Deceased only twice since leaving home, refusing all other contact with her mother.
The Deceased took great care to ensure that the reasons why she had disinherited her daughter were set out in a letter that she left with her will, stating that she considered that she owed no moral or financial obligation to provide for her daughter and making clear that her daughter had not been financially dependant upon her since she had left home. The Deceased had gone so far as to tell her daughter of the contents of her will in 2002.
Following her mother’s death Mrs Ilott made a claim under the Act for reasonable financial provision to be made for her.
The court heard that Mrs Ilott was married with five children, four of whom lived at home with Mrs Ilott and her husband. Mrs Ilott did not work and her and her family were mainly reliant upon state benefits for financial support. The judge at first instance was required to weigh up and strike the appropriate balance between those factors which the court must take into account when considering a claim of this nature, as set out in section 3 of the Act. The factors relevant to this case included:
- The financial resources and needs of the applicant.
- The financial resources and needs of the any other beneficiary of the estate.
- Any obligations which the deceased had towards the applicant.
- The size and nature of the estate.
The judge found that the Deceased had failed to make reasonable financial provision for her daughter and awarded Mrs Ilott £50,000.
Mrs Ilott considered that £50,000 was insufficient and so appealed the decision. Her appeal was dismissed, the court concluding the judge at first instance had wrongly balanced the section 3 factors and had incorrectly focused on the reasonableness of the Deceased’s behaviour, rather than the reasonableness of the provision made for her daughter.
Mrs Ilott successfully appealed to the Court of Appeal and so the matter was remitted back to the High Court for a decision on the level of Mrs Ilott’s award. This decision is pending.
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Unwilling
So a person doesn't have the right to decide how to spend her own money? Judges have made this decision based on the fact that the state shouldn't have to provided for someone when a parent has cash, or at least not if she's dead. No doubt the daughter will be back on benefits after a year of partying and holidaying anyway. I suppose from now on widows may give away all their money to charity on their death bed. Problem sorted?
Posted by: MarkG
outcome
does anyone know when the decision is due and how we find out the result please?
Posted by: cv
Scummy scroungers
So classic case - two adults neither of whom has the savvy to be able to get up and get a job - meanwhile to pass the time between episodes of Neighbours on daytime TV they go to bed and produce more kids which we as tax-payers have to look after. Then her hard-working or at least financially stable mother passes, tried to make sure her lazy daughter gets zilch and the stupid courts rule in her favour! To make it worse the kids learn from their parents that it is ok to be lazy gits and not bother providing for yourself or your kids and perpetuate the whole situation in the next generation. Something really needs to change.There needs to be some kind of social revolution that gets these parasites off our backs
Posted by: Paul Burnside
The simple solution
Is for the coury to insist that an annuity is bought rather than a capital sum paid to this person. who really should not have got a penny and in doing so, this money should be used to reduce the debt to society. An income will ensure it is spent for what teh court has said it should be. i.e. the maintenance of a "child" (how old is she!) Going forward, either the person needs to spend every penny they have OR perhaps what the charities need to do is arrange an annuity pool which people can gift whta they intended during the life time in return for an income and a right to periodic lump sums, which if declined go back to teh annuity pool. something clever needs to be thought up as this is not (on the face of it) just. It needs to be born in mind that several judges believed she did not deserve a penny and there was no legal right to it, but some feel otherwise and are rewriting the law, without law being rewritten it would appear, which sounds like the FOS way of doing things!
Posted by: Nameless
Scroungers and a broken state...
I wonder how much emphasis was placed on the fact that the sponging daughter was just that, a sponge to the State's meager resources. A kind of 'if we give her some cash we can get her off benefits' kind of thing. The cynic within me would suggest that Judges must be fearing reforms to their superannuation benefits and the more they can 'save the State' the better they will do. I actually want to know - who funded the court cases???? I always find it amazing that 'those with no job' tend to be those with the largest families. Whilst any working couple would stop and think, 'can we afford another mouth to feed?', those funded by the State seem to take the view 'the mice will play, the State will pay'. There is so much wrong with this country, the morals, the lack of common sense and the beneits system for starters that I could be here all day, but instead I'm going out to shoot things!!!
Posted by: You must be joking
The disinherited daughter
Extending a previous comment, any award should be considered for placing in trust, with a court-appointed trustee (not a social worker, who will be a soft touch). As this is not yet a current mechanism, perhaps this should be thought about by the Lord Chancellor (who job this might appear to be). Thus there could set up be a proper balance between finacial support for, I suggest, the children not the adults, and the retention of a fair level of state benefits. We mustn't forget that if she receives a large lump of capital and is treated like the rest of us by the State, her benefits should be reduced by the deemed interest the lump sum is suppposed to produce. If the benefits are largely taken away it will be the innocent children who will suffer.
Posted by: Orlando Furioso
Balance the view
Has no one taken into account what sort of mother the deceased was and what caused the daughter to flee at such a tender age? Maybe she is of low mentality or is left incapable is some way to lead an independent working life. No guidance when young can result in many problems. Parents owe something to their children particularly if they did not provide a safe and loving environment at home. Half a story is never enough!
Posted by: MaryT
Anti Evolutionary
The benefits system is what will bring this country to its knees. We need someone to stop this PC mess now.
Posted by: Harry
Different in Scotland
Although in this case it is under E & W Law in Scotland you cannot disinherite a sibling as they have "legal Rights" to thier parents estate. For those of you that do not know if you are domiciled in Scotland your wife, husband or civil partner has "prior" rights to your estate and your children have "legal Rights". This means that when drawing up wills under scots law you must take into account these positions as they have rights to your estate no matter what you put in your will. There are of course ways of limiting what they are entitled to and I would suggest your clients use a specialist will writer, like myself, to make sure that all potential positions are taken into account.
Posted by: David Todd
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Bloody money grabbing scrounger
Posted by: Me