In the much-publicised case of Ilott v Mitson , Heather Ilott has been awarded £164,000 from the estate of her estranged mother by the Court of Appeal, even though her mother’s will expressly stated that she should receive nothing. Are other wills now at risk?  Samantha Ewing and Margaret Windram, associates at Thomas Eggar, consider what lessons we can learn from the judgment.

What’s happened?

Melita Jackson died in 2004, excluding her only daughter, Heather Ilott, from her will and instead leaving everything to a number of charities with whom she had no real connection. The estrangement began when Mrs Ilott eloped aged 17 in 1978. Attempts at reconciliation failed. Mrs Ilott brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). The High Court agreed that the will failed to make ‘reasonable provision’, and awarded her £50,000 from the estate.

The Court of Appeal has agreed that ‘Mrs Jackson had acted in an unreasonable, capricious and harsh way towards her only child’. At [57] of the judgment, Lady Justice Arden continued: ‘… the appellant’s resources, even with state benefits, are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who had been living independently for so many years.’

The amount Mrs Ilott was awarded was increased to £164,000.

Why is it important?

The case as a whole offers an important review of the circumstances in which an adult child may bring a successful claim against the estate of a parent, even where there has been a lengthy estrangement, and no expectation of an inheritance by that child except in circumstances where the child suffers financial hardship. The court considered that there was no evidence that Mrs Ilott had wanted to be estranged from her mother.

How does this fit into existing law and practice?

The ruling does not change the law on claims against wills. For years, adult children of limited financial means or those with significant health problems have been able to challenge any provision left (or not left) for them by their parents. The I(PFD)A 1975 requires the court to consider all section 3 factors (that is, factors to which court is to have regard in exercising its powers to make orders), including the claimant’s earning capacity, in addition to their financial needs and resources (including future needs).

The claim has to be balanced against the position of other beneficiaries who may have financial need, and therefore may have competing claims against the estate. At [51], Lady Justice Arden said: ‘In my judgment Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only … that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation.’

In what ways does this affect practitioners?

Practitioners must keep detailed attendance notes to record what the testator was thinking at the time of making their will. Clients should be advised that they are still free to leave their estate how they wish and to disinherit children if they want to, but this may give rise to a claim where the potential claimant child has limited financial resources or high need, and particularly if the testator has chosen beneficiaries to whom they have no connection.

It does not necessarily mean that those claims will be successful, but practitioners should advise clients that testamentary intentions which appear spiteful, vindictive or unusual may be open to challenge.

Although Mrs Jackson left a letter of explanation, her lack of connection to the charities assisted Mrs Ilott’s claim that the lack of provision for her was unreasonable.

The I(PFD)A 1975 extends claimants under the act to include those where the testator ‘stood in the role of a parent’ towards the claimant. This potentially could be a wide class of claimant, and may include grandchildren, godchildren, foster children and others. There is no definitive guide as to how long the role should have lasted for, or the extent of the role, for such a claim to be successful. Clients who may fall into such a role should also be advised on this additional class of potential claimant.

What, if anything, should I be doing differently as a result?

Ask questions to identify any potential claimants. Clients should be advised of the potential for a claim against their estate under the I(PFD)A 1975 and the potential limits to their testamentary freedom. A record should be made of the connection with the proposed beneficiary and reasons for the exclusion or limited provision for the child.

For many clients, the best way of preventing a fight over the estate after their death would be to discuss their thoughts with the whole family while they are still alive. If that feels like a daunting prospect for a client, it can make sense bringing in someone independent and experienced to ease the process. This approach will be covered in detail in a webinar that the Advocacy Section is running on how to negotiate effectively on 13 October 2015. The speaker will be Andrew Hildebrand, a leading UK mediator. For more information and to book your place, click here.