The death of testamentary freedom?

In Ilott v Mitson [2015] EWCA Civ 797, Melita Jackson left her £500,000 estate, subject to one small legacy, to three charities; the Blue Cross, the Royal Society for the Protection of Birds, and the Royal Society for the Prevention of Cruelty to Animals. She did this to the exclusion of her only daughter, Heather Ilott.

Mrs Jackson and Mrs Ilott had been estranged for 26 years following Mrs Jackson's disapproval of her daughter's relationship with her now-husband. When drawing up her will Mrs Jackson expressed that she did not want her daughter to benefit in any way from her estate, requesting that her executors fight any claim that her daughter might make after her death.

Following Mrs Jackson's death, Mrs Ilott made a claim under the Inheritance (Provision for Family and Dependents) Act 1975, for 'reasonable financial provision' from her mother's estate. She was initially awarded £50,000 from the estate but appealed for a greater sum. The Court of Appeal's judgment was handed down on 27 July and allowed the appeal, awarding Mrs Ilott £164,000; around one-third of the estate.

The law of the land

The general position under the law of England and Wales is that individuals domiciled here have freedom of testamentary disposition, which means that they can leave their estate to whomever they choose. This is not always the case in other countries. For example France and Scotland have 'forced heirship' rules which dictate how much of the estate can be left freely, and how much must go to certain family members.

However the 1975 Act undermines the notion of testamentary disposition to some extent, by allowing certain individuals the right to make a claim against a deceased's estate for greater provision. The potential categories of claimant are the deceased's spouse or civil partner, their child, someone treated as a child, someone maintained by the deceased, and their cohabiting partner. So while the starting point is that you can leave your estate to whomever you choose, a claim could be made after your death if you exclude any of these individuals.

A new precedent

Traditionally the courts have discouraged claims by able-bodied adults capable of earning their own living. It is being suggested in the press that the Ilott case is a watershed decision that will open the floodgates for more claims by disgruntled family members. However the case turns on its own very specific facts.

In the judgement there was reference to Mrs Jackson being 'unreasonable, capricious and harsh', implying she had excluded her daughter from her will without good reason. In addition Mrs Jackson had little connection to the charities to which she left money and this played a part in the ruling.

Finally Mrs Ilott was living on the breadline and her circumstances were carefully reviewed in the case. It seems all of these factors weighed heavily in the decision. So while this case is demonstrating that someone who lived independently of the deceased can still bring a successful claim, the specific facts should not be forgotten.

Individuals often have good reasons for excluding a family member. 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 for a share of the estate.

Where possible we always suggest you discuss your will with your family, explaining why you have left your estate in such a way. By having this conversation in your lifetime, you're avoiding a shock to your relatives on death. You can also help them understand your reasoning.

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

Caroline Cook is a senior associate at Wedlake Bell

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