Claims by adult children for financial provision from parents’ estate have been a difficult subject for over 30 years. However, lawyers and the public should soon have greater certainty when the Supreme Court reaches a decision in the appeal of Ilott v Mitson, which it heard on 12th December 2016.
Heather Ilott, a married woman and mother of five children, had been estranged from her mother Melita Jackson, for over 20 years prior to her mother’s death in 2004. Mrs Jackson’s Will left her estate of £486,000 to charities including the Blue Cross, RSPB and RSPCA. Nothing was left for Mrs Ilott, who lived in modest circumstances and would have been very grateful for some provision.
Mrs Ilot brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in which she claimed that her mother’s Will produced an unreasonable outcome in not giving her any provision.
The claim had its’ difficulties as for many years the courts had not been generous with adult children, particularly those who were thought capable of earning their own living and where there had no moral or other obligation towards the child by the parent. Against this background the claim came before a District Judge in 2007 who found that in all the circumstances Mrs Jackson’s Will had failed to make reasonable financial provision for her daughter. He awarded the Claimant £50,000.
That decision was successfully appealed to the High Court, which took a more traditional and hard lined approach to Mrs Ilott’s claim and essentially upheld the testatrix’s entitlement to leave her estate to the objects of her choice.
Undeterred Mrs Ilott appealed that decision, which came before the Court of Appeal several years later in 2011. The High Court’s decision was overturned and the case sent back to the High Court who heard the case and stood by the original award of £50,000.
Still feeling that she had not been given enough provision, Mrs Ilott appealed again, which came before the Court of Appeal in 2015. On this occasion the court decided that the original award was insufficient and awarded the Claimant £163,000, which included £143,000 to buy the property in which she was living and £20,000 to top up her income.
At the time legal practitioners thought that the case had finally arrived at a conclusion and reasonable guidance had been given on how the court should treat adult claims, or at least in cases similar to those of Mrs Ilott. It was clear that adult children should be treated like any other Claimant and did not have to show a particular moral or other legal obligation by a parent, which was already known did not arise merely through blood ties. An objective test had to be applied to claims to decide in each case whether in all the circumstances of the case, reasonable financial provision had been given. Some commentators felt that this had opened the door to disappointed beneficiaries and that the sanctity of choice given to a person when making a Will had been undermined. In effect, English law was thought to be moving towards a European model of forced heirship, through the back door. Conversely many thought that the law was rightly being brought up to date, to deal with modern society where children and other dependents needed financial provision if they were in difficult circumstances.
However, feeling no doubt that this was setting a dangerous precedent, Mrs Jackson’s charitable beneficiaries appealed to the Supreme Court. The case is the first of its kind to come before the highest court in the country and it is fair to say that the parties and legal practitioners await the decision with baited breath.
It is very difficult to predict which way the Supreme Court will go. The appeal could succeed and Mrs Ilott’s claim be dismissed, leaving her with nothing from her mother’s Will. Alternatively, the original District Judge’s decision of £50,000 might be restored. Possibly the most obvious outcome will be the preservation of the decision of the Court of Appeal which gave the Claimant £163,000. Conceivably the award might be increased, although that is unlikely.
To Mrs Ilott the size of the award will be all important. To the wider public and to practitioners the terms of the judgment will be of upmost importance. What is a parent’s obligation to an adult child, in 2017 and beyond, particularly one who has not been close for a number of years? Should someone who has decided to have a number of children and take a certain path in life be judged by those choices? What is the appropriate level of maintenance to be given to a Claimant? How should claims be approached where the beneficiaries are not other family members, but charities? Where does this leave a person when making a will? These are the questions which the Supreme Court are going to have to deal with.
In my view it is likely that the court will steer a middle path. With the amount of case law in recent years leaning towards a more balanced and objective test, it will be difficult to see the Supreme Court dismissing Mrs Ilott’s claim altogether. On the other hand the court will want to preserve the perceived cornerstone of English law that allows a person to make a Will, which directs the distribution of their assets after death. I think the Supreme Court is more likely to make an award for financial provision, between the two figures already mentioned. My own prediction, for what it’s worth, is that it will back the Court of Appeal’s decision, but add it own reasons and hopefully, give us definitive guidance, as above all what the public and legal practitioners need is certainty to deal with future case of this kind.
The decision of the Supreme Court is awaited. A further updated article will follow once the decision is known.