They fix things up, your mum and dad

The ghost of Philip Larkin had been casting a long shadow over the Supreme Court for months. From the day when, aged 17, Heather Ilott absconded from home with her boyfriend, to the failed reconciliation attempts with her mother over the years, and from the letter of wishes explaining why her daughter was cut out of the will, to last week’s decision that she would only be awarded £50,000 as a dependant, things had looked totally larkined up from the start. Yet, the result could have been completely different. Not so much on the family front, where there appeared to have been irreconcilable differences, but certainly the judicial outcome.

Ilott’s battle to get a slice of her mother’s estate started ten years ago. Melita Jackson had left the whole of her £486,000 estate to three animal charities with whom she had had little or no interaction while alive. Ilott made a claim under the Inheritance Act and was awarded £50,000 by a district judge. On appeal she secured £143,000. Last week, seven Supreme Court justices reinstated the original award.

The ruling was greeted with delight by the third sector and its lawyers. Freedom to leave one’s estate to whomever one wished had been restored, a victory for charities that so badly depend on legacies to pursue their worthwhile causes. Such comments contribute to giving the impression that the law has become more charity friendly. They create an atmosphere in which third-sector organisations could, wrongly, feel empowered to defend challenges to wills more vigorously. It would be unfortunate if this led to an increase in litigation, and certainly unwise to encourage it.

In truth, as some observers have rightly pointed out, the principle of testamentary freedom had never been questioned. Claims under the Inheritance Act are fact specific and remain so after Ilott. The Supreme Court ruling isn’t about that; it’s about the process by which the Court of Appeal had come to its decision to make the higher award.

However, aside from criticising the appeal court’s findings for giving too little weight to the long period of estrangement between mother and daughter, and to the testator’s clear wishes, the justices provided little new guidance about how ‘reasonable financial provision’ should be assessed. This deficiency stemmed from the Act itself, said Lady Hale, suggesting the Law Commission should look into the issue again.

Underlying the issue, she said, was the commission’s own lack of clarity in the report that led to the adoption of the Inheritance Act, ‘leaving the court to distinguish between the deserving and the undeserving’. Lady Hale’s comments will resonate with many. Equally, the chances that the Law Commission will reopen the file – let alone that parliament would make reform a priority in the current climate – are slim.

Yet the deputy president’s comments usefully place such cases in the wider context of efficient use of public funds. The Ilott family is living mostly on benefits – tax credits, housing, and child benefits. Increasing the award would have allowed them to buy out their council house and perhaps provided a small regular income. Either way, it would have reduced reliance on the public purse. The extent to which this should be taken into account remains open to debate. But if the Supreme Court can reject the Court of Appeal’s approach on the basis that charities are especially reliant on legacies, then a contrary argument based on benefit to taxpayers should not be disregarded outright.

At a time when pressure on public funding can only continue to increase, this is one amendment that could possibly get parliament’s attention. So, your mum and dad, they could fix things up, for everyone.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg