Lawyers split over ramifications of landmark Court of Appeal ruling on wills

A landmark Court of Appeal ruling has left lawyers reeling as they try to comprehend the potential ramifications of the decision on testamentary freedom.

It has been suggested that the court's judgment in Ilott v Mitson could give rise to an increase in the number of adult children disputing the last wishes of their parents if they do not believe they have been left a reasonable provision in their wills.

Heather Ilott's mother, Melita Jackson, left her estate worth almost £500,000 to the RSPCA, RSPB, and Blue Cross animal charities after her death in 2004. Ilott, however, challenged the will under the Inheritance (Provision for Family and Dependants) Act 1975.

Ilott, now 54, eloped with a boyfriend at the age of 17. Her mother, apparently having never forgiven the slight, excluded Ilott from her will, making it clear she did not want her daughter to inherit.

Judges in the Court of Appeal, however, have now ruled that Ilott, who has five children, was not given a reasonable provision from the estate for future maintenance as she was on benefits and had no pension. They added that Jackson had 'no connection' with the charities during her lifetime.

Ilott has subsequently been awarded £143,000 to buy the rented home she lives in from a housing association and a further £20,000 in cash as 'additional income'. This amounts to an increase from the £50,000 the High Court said she should receive.

Wilsons partner James Aspden, who represented the three charities in the case, said it was a 'worrying decision for anyone who values having the freedom to choose who will receive their property when they die'.

Explaining the judgment, Paula Myers, a lawyer at Irwin Mitchell specialising in will disputes, said that, while parents can still disinherit their children, they must have a good reason for doing so and be able to explain what connects them to the organisations they wish to benefit under the will instead.

'This means that adult children who have been left out of wills may find it easier to challenge them if they have not been left a reasonable provision. It provides further clarity to the Inheritance Act,' continued Myers.

'The increase in the amount the court has awarded to Mrs Ilott sends out a message about how important the judges feel about this issue. It's also interesting that they have found a way to award her a significant sum without affecting her benefits.'

Diminishing rights

Some lawyers, however, believe that the ruling may mark the beginning of the end for testamentary freedom as we know it.

Samantha Ewing, an associate in the contentious trust and probate team at Thomas Eggar, said: 'The ruling potentially means that the right of testamentary freedom in England and Wales, to leave your estate to any person you wish, will be diminished as the doors have been opened wider for estranged children to claim from their parents' estates even where they were held jointly responsible for the failure of reconciliation.'

Ewing added that the Illot case, coupled with changes made to the eligible claimants under the Inheritance Act, will increase the number of challenges to the provision left by wills.

She also explained that the Inheritance and Trustees' Powers Act 2014 extended claimants to include those where the testator 'stood in the role of a parent' towards the claimant. Potentially, grandchildren, god children, and foster children may now have claims.

'The clear warning to those making wills is that while testamentary freedom still exists, wills which appear spiteful or unusual in excluding those who may have expected to inherit may now be much easier to attack. Clear reasons for the exclusion and chosen beneficiaries should be given and kept alongside your will,' she continued.

'Don't panic'

By contrast, Ryan Mowat, a partner and contentious trusts and probate expert at Kingsley Napley, argued that the case was unlikely to have the far-reaching impact that has been predicted.

'There is no need for people to panic fearing the wishes they have prescribed in their will may be overturned by the courts in the future,' said Mowat. 'The courts have to consider a number of factors in deciding whether a provision, or lack of a provision, in a will is reasonable. In particular, the courts will be interested in the needs and resources of the parties.'

Mowat explained that in Illot, the defendants were charities whereas the claimant was plainly in financial need: 'The award was set at a reasonable level to enable her buy a property and to have a small cash sum that would not affect her state benefits.'

'Claims by disinherited adult children who are not in financial need will still be very difficult,' he continued. 'In contrast, surviving spouses will nearly always have good claims if they are excluded from a will or not left a reasonable provision. For the majority of cases going forward, a person's last wishes will still stand provided they have made a valid will.'

James Lister, an associate at Charles Russell Speechlys, agreed, adding that although the ruling should be noted, it will not be so easily applied across all cases.

'While this judgment will be interpreted as a blow to testamentary freedom, it should be remembered that this is a very fact specific case,' he said.

'It will be of limited application to other claims where involving disputes between members of the same family, as distinct from disputes involving charity beneficiaries. The court was clear that the position of the charitable beneficiaries did count against them here, as they had no direct financial need whereas Mrs Ilott plainly did.'

John van der Luit-Drummond is legal reporter for Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD