A question of freedom

Over last summer there was vast media coverage given to the case of Ilott v Mitson [2015] EWCA Civ 797. The case is now receiving a renewal in public attention following the announcement that the charites involved have been given leave to appeal, but on what grounds and how does this impact those wishing to leave their estate to a charity instead of a family member?

The resulting legal fight over Mrs Jackson's estate ended with Mrs Ilott being awarded £164,000 (approximately one-third of the estate) by the Court of Appeal under the Inheritance (Provision for Family and Dependants) Act 1975. Under the inheritance act, certain categories of claimant can challenge a will or the intestacy rules to increase or obtain a share of an estate. When considering whether reasonable financial provision has been made for a claimant, the test is whether she or he has received 'provision as it would be reasonable in all circumstances for the applicant to receive for his maintenance.'

A soft touch?

At the beginning of March 2016, it was announced that the charities had been granted leave to appeal to the Supreme Court, who will decide whether Mrs Ilott's award should be lowered to £50,000, the award made at first instance. The court will also look at whether the Court of Appeal was correct in its approach to the 'maintenance' standard under the inheritance act. It is usually difficult for able-bodied adult children capable of earning a living to satisfy the court that they need provision for their 'maintenance'.

Mrs Ilott's case was expected to be no different, however the Court of Appeal held that Mrs Ilott's resources, even with state benefits, were at such a basic level that they justified making a substantial award in this case. The court is also being asked whether it was wrong to structure Mrs Ilott's award in a way which allowed her to maintain her entitlement to state benefits.

As justification for the appeal, the charities have cited the implications of the decision for testators wanting to make gifts to charities in their wills, as at present, there is arguably doubt over how robust such gifts are to challenge. The appeal is unlikely to be heard for another 18 months, but will be keenly awaited by charities, testators and practitioners alike.

In considering the implications of this appeal and the original award given to Mrs Ilott, it should not be overlooked that there were very specific facts (Mrs Ilott's financial situation and the fact that Mrs Jackson seemingly had little connection with the charities, to name two) which warranted the surprisingly high award.

Leave no ambiguity

Individuals often have good reasons for excluding a family member and our advice to them is to leave a side letter to their will, explaining those reasons and why they would not want the affected family member to take legal action after their death. Where possible, we always suggest testators discuss their will with family explaining why they have left their estate in such a way.

In having this conversation in their lifetime, they are avoiding a shock to relatives on death, helping them understand the reasoning. There are other practical steps a practitioner can advise. For instance, if there are any doubts over capacity, then a doctor should be present to confirm the testator is of sound mind. If the testator is benefitting a charity, they should provide reasoning for wanting to support the charity's cause.

The Ilott case is a reminder to be cautious about excluding certain family members from a will, but not a sign that a testator should include them if they feel strongly that they should not share in the estate. It is their will and if they go about it sensitively, reasonably and provide explanation, their estate should stand a good chance of avoiding or defending any claim.  

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser 

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