Ilott v The Blue Cross: a victory for testamentary freedom

16 / 03 / 2017

On 15 March the Supreme Court ruled on the landmark case of Ilott v The Blue Cross (previously Ilott v Mitson), a claim originally brought by a daughter excluded from her mother’s Will. The decision of the Court of Appeal in 2015 to award the daughter a one-third share of the estate caused a stir within the legal community, and hit the headlines in the wider media, because of the ramifications this had for the principle of freedom of testamentary disposition (the right for individuals to leave their assets to whom they choose). The Supreme Court judgment was keenly awaited.

Background

Ilott v The Blue Cross involves a dispute over the Will of Melita Jackson and whether her daughter, Heather Ilott, who had been deliberately left out of the Will, should be awarded a share of the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act“) at the expense of the animal charities named as the main beneficiaries in the Will. A summary of the case and issue involved is set out in Caroline Cook’s article in May 2016 which you can read here.

Under the 1975 Act, certain categories of claimant can make a claim for a share of a deceased individual’s estate if reasonable financial provision has not been made for them. In respect of Mrs Ilott, “reasonable financial provision” meant such provision as it would be reasonable in all circumstances for her to receive for her “maintenance”.

Supreme Court ruling

The Supreme Court has allowed the charities’ appeal and reduced Mrs Ilott’s award from the estate from £164,000 to just £50,000, that being the sum awarded to her when this case was originally decided.

The judgment will be welcomed by those that saw this case as an erosion of testamentary freedom. This is the first time a claim under the 1975 Act has been consider by the Supreme Court and this unique judgment does give some much needed clarity on the issue of claims under the Act, particularly those made by adult children. It is clear from the judgment that the testamentary wishes of Mrs Jackson were relevant and consideration needed to be given to them, even if that meant that her daughter was disinherited under her mother’s Will. The Supreme Court also took the view that account needed to be taken of the fact that the parties were estranged (and had been for over 20 years).

There was also some helpful comment by the Supreme Court on what “maintenance” means in the context of an award under the 1975 Act, such as to make it clear that it does not extend “to any or everything which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living“. The Supreme Court also expressed the view that a claimant’s needs may not necessarily result in an award under the 1975 Act. Whilst each case under the 1975 Act is fact specific, it is a warning to those adult children who are considering bringing a claim that the purpose of the 1975 Act is not to provide them with a legacy from the estate.

Future Will disputes

Since the decision by the Court of Appeal in this case, there has been a clear trend in adult child cases under the 1975 Act. This latest judgment is likely to make potential claimants think much longer and harder about the merits of such a claim.

It does remain the case that some cases will have merit and it is important to seek legal advice from a solicitor at the Will-making stage about how claims under the 1975 Act can be avoided or the risk of one being considerably reduced.

For more information on the case or on contentious trusts and probate matters, please contact Andrew O’Keeffe, Head of Private Client and the Contentious Trusts and Probate team.