Relevant conduct

Much has been said about the Court of Appeal's decision in Ilott v Mitson. But contrary to what you may have read, the case does not mark a sudden departure from freedom of testamentary disposition. Less so does it mean, regardless of conduct or merit, that errant adult children are now 'entitled' to provision from their deceased parents' estates.

In contrast to Ilott, Wright v Waters [2014] EWHC 3614 Ch shows that the courts do reject adult child claims where relevant conduct is a material factor. It is a trite observation (but sometimes we all need a reminder) that each case is specific to its facts.

It is also relevant that the court has a wide discretion in Inheritance (provision for Family and Dependents) Act 1975 cases, in determining whether reasonable provision has objectively been made and, if so, what award to make.

It is worth unpicking the particular facts in both cases to explain the rationale of the decisions.

Ilott v Mitson

The facts in Heather Ilott's claim are well known. Broadly, Heather had been estranged from her mother Melita Jackson for 25 years, and knew she would not receive a penny from her estate. Mrs Jackson left her estate of £486,000 to The Blue Cross, the RSPB and the RSPCA, and she donated £5,000 to the BBC Benevolent Fund.

Drawing on the various decisions in the case, the following were critical points:

• Mrs Jackson's gifts were to animal charities with which she had no connection during her lifetime. Charities do not have competing needs in 1975 act claims;

• Mrs Ilott had five children, was of limited means, and was in receipt of means tested state benefits and had
  no pension; and

• Mrs Ilott was an only child.

Wright v Waters

Patricia Wright was the daughter of Mary Waters. By her will, Mrs Waters left the bulk of her small estate to her son David, and she left nothing to Patricia. There had been a bitter and acrimonious nine year estrangement between mother and daughter, emanating, in large part, as a result of the refusal of Patricia to return £10,000 to Mary.

Patricia Wright had seen this sum as a gift, but Mary Waters had clearly intended the money to be invested in shares on her behalf and returned to her. This did not happen and critically, in 2001, Patricia sent a letter (described as 'extreme' by the judge) to her mother stating, 'As far as I am concerned I no longer have a mother, you are not fit to call yourself that,' and, 'I wish you were dead.' Patricia did not see her mother again and did not attempt to repair their relationship or retract the letter.

The following key points in the case emerged:

• Mary's gifts were to her son (not charities). Although he did not put forward any competing needs he had a 'moral' claim to the estate; and

• Patricia was also of limited means and on state benefits, and was wheel chair bound with a number of medical conditions (heart disease, angina, diabetes, osteoarthritis, depression, vertigo and cervical spondylosis).

The principal reason, however, as to why the judge found against Patricia Wright was the 2001 letter, the withheld £10,000 and the failure by Patricia to reconcile herself to her mother. Regardless of Patricia's poor financial situation and reliance on state benefits, these did not trump the effect of conduct.

Patricia's behaviour outweighed all other factors in her favour - for Patricia, it was 'chickens coming home to roost'. She had proactively instigated the estrangement. In Heather Ilott's instance, there had been a passive estrangement from her mother but she had not actively sought it out. It was qualitatively of a different order.

Summary

The question always is whether it is objectively unreasonable that the will does not make provision. 'Reasonableness' ought not to introduce concepts of morality, or subjective judgment, except when such concepts emerge from relevant conduct.

It is not impossible for testators to exclude children of whom they disapprove if the conduct in issue is connected factually to past circumstances (which can be evidenced objectively) and is reasonably explicable. In Patricia Wright's case, the judge found that the conduct was indeed relevant. 

Lloyd Junor is a partner at Adams and Remers

He writes the regular in-practice article on wealth structuring for Private Client Adviser

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