Challenging a will: Ilott v Blue Cross and Others

By Andrew Milburn on

We have previously written about testamentary freedom and the Court of Appeal’s decision in Ilott v Mitson [2015]. Since then, there has been an appeal to the Supreme Court, which has redefined the principles again. We will look at the Supreme Court’s decision, and whether a family member can challenge a will.

As we have previously seen, testamentary freedom is one of the main principles of the law of England and Wales. This means that you are free to leave your estate to whoever you choose, however you choose.

However, under the Inheritance (Provision for Family and Dependants) Act 1975, if the will of a deceased does not provide for a certain class of people, then that person may have a claim against the estate for reasonable financial provision. For people other than spouses or civil partners, the reasonable financial provision will be for maintenance only, and is an objective test to be determined by the Court.

The classes of people that can make such claims include:
1. The spouse or civil partner of the deceased;
2. A former spouse or civil partner of the deceased (but only where they have not formed a subsequent marriage or civil partnership);
3. Any person living in the same household as the deceased for the two years prior to death as either their spouse or civil partner;
4. A child of the deceased;
5. Any other person who was treated by the deceased as a child of the family; and
6. Any person (not included above) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

Ilott v Blue Cross and Others [2017] UKSC 17 (previously known as Ilott v Mitson)

This case concerned the will of a Mrs Jackson, which was contested by her daughter, Mrs Ilott.

Mrs Jackson and Mrs Ilott had been estranged for most of the 26 years prior to Mrs Jackson’s death in 2004. Mrs Ilott lived with her husband and five children and received a number of state benefits.

In her will, Mrs Jackson left the majority of her £486,000 estate to a number of charities, making no provision for her daughter. Mrs Jackson left letters of intention, explaining her reasons for leaving Mrs Ilott out of her will. Mrs Ilott had known about this for many years, and lived without any expectation of benefit from her mother’s estate.

Following Mrs Jackson’s death, Mrs Ilott made a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

District Judge’s decision

The District Judge found that the will indeed did not make reasonable financial provision for Mrs Ilott, and awarded her £50,000.

Mrs Ilott decided that this was not enough money, and appealed the decision to the Court of Appeal.

Court of Appeal’s decision

In 2015, the Court of Appeal decided that the District Judge had in fact got it wrong and that Mrs Ilott should be awarded a larger sum.

The Court of Appeal overturned the District Judge’s decision on two bases, stating that:
1. he had limited Mrs Ilott’s award unfairly by reference to her limited means and living expenses; and
2. he had failed properly to investigate the effect of the award on her benefits entitlement.

The Appeal Judges were also concerned that Mrs Jackson had preferred to leave her estate to charities to which she had no connection, as opposed to her daughter. The Court of Appeal increased the award to £163,000. This was enough to buy the home that Mrs Ilott lived in, plus additional income.

The charities were unhappy with this decision and appealed the decision to the Supreme Court. It was this decision that was published last week.

Supreme Court’s decision

The Supreme Court allowed the charities’ appeal, returning to the original award of £50,000.

The Supreme Court decided that the District Judge had made neither of the errors identified by the Court of Appeal. In the Supreme Court’s view, the Judge was aware of the effect of his order on the applicant’s benefits, and had made the £50,000 award so that the claimant could acquire new white goods and other fittings to improve her standard of life, whilst leaving behind a capital sum small enough not to affect her entitlements.

This decision is important as it provides some clarity on claims under the Inheritance (Provision for Family and Dependants) Act 1975. In its judgment, the Supreme Court highlighted the importance of limiting awards to adult children to ‘maintenance’, rather than providing “any or every thing which it would be desirable for the claimant to have”.

The Supreme Court took into account Mrs Jackson’s wishes; the fact that Mrs Jackson and Mrs Ilott had been estranged for so long; and recognised the importance of charitable giving within wills.

If you are looking to reduce the threat of a successful claim against your estate, or if you would like advice on whether you can challenge a will and bring a claim against a deceased’s estate, our wills and probate solicitors in Leeds, Bradford, Wakefield, Manchester and London can advise you. Contact them today on 0800 988 7756 for a free consultation

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