UK: Should Charities And Testators Be Worried By "Ilott V Mitson"?

Last Updated: 20 April 2011
Article by Roberta Harvey

Daughter's claim under her mother's will

The Court of Appeal ("CA") has recently decided, where the deceased had left her estate almost entirely to animal charities, that it was right for a share to be redirected to the deceased's daughter. This was in spite of the fact that the deceased had left a letter with her 2002 will explaining why she had not provided for the daughter in her will out of her net estate (totalling some £486,000). In particular the daughter had left home in 1978, seeing her mother only twice since then and otherwise refusing contact. In the circumstances the mother had felt no moral or financial obligation to provide for her daughter in her will. The CA nevertheless upheld the district judge's decision that provision be made for the daughter.

On what basis did the CA agree with the district judge that financial provision should be made? The daughter made her claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") that her mother's will failed to make "reasonable financial provision" for her. In deciding such questions the court is bound by the Act to take into account a number of factors including the applicant's financial resources and financial needs, any obligations and responsibilities which the mother had to the daughter and any other matter, including the conduct of the daughter, which the court considers relevant.

Principles applied by the court

In his judgment, the district judge had concluded that the combination of the daughter's financial circumstances, the size of the estate, the absence of countervailing demands for financial help from other beneficiaries and the unreasonable conduct of the deceased towards her daughter meant that reasonable provision had not been made for the daughter. Those factors outweighed other factors, such as the daughter's own conduct towards the deceased.

Whilst the CA repeated the accepted principle that the financial circumstances of the applicant need to be considered against all the other factors of the case and that need alone is not enough to satisfy the court that reasonable financial provision was not made for the applicant, it was accepted by the CA that a distinguishing factor in this case was the applicant daughter's modest means, her limited earning capacity and the fact that she was likely to continue to require subsidies for her basic living expenses.

Whilst the CA made the point that cases under the Act are very fact-specific, a number of principles are articulated in the llott v Mitson about how the Act is to be applied. First it is the reasonableness of any provision made that is important, rather than the reasonableness of the testator's behaviour. Second, whether or not the financial provision (or lack of it) by the deceased is reasonable is a qualitative decision (rather than the exercise of a discretion) by the court taking account of the statutory factors mentioned above but without any requirement to "balance" such factors against each other. Finally there is no requirement of any moral obligation owed by the deceased to the claimant as a precondition for a successful claim. In the CA it was considered that these principles had been correctly applied by the district judge whose decision should therefore be upheld.

However, these considerations are not new but are already articulated in the existing case-law on the Act. In Ilott v Mitson the Court of Appeal held that the district judge's findings were sufficient to have enabled him to reach a value judgment that leaving nothing to the daughter did not represent "reasonable financial provision". In view of this then the CA allowed the daughter's appeal and has remitted the case back to the High Court for the decision on the actual amount to be awarded (although expressing the hope that the case could be compromised at this stage, rather than further litigated).

Conclusion

In the case of Ilot v Mitson the CA has broadly upheld existing principles in deciding that it would be appropriate for the testator to have provided in her will for her daughter. We do not therefore view the case as a new departure. Insofar as the CA reached different conclusions in Ilott v Mitson from those in earlier cases where testators' children failed to establish entitlement under the Act, the distinctions drawn by CA related more to the factual circumstances in Ilott v Mitson rather than from any attempt to forge a new approach to applying the Act. We will therefore be advising clients, as we have done until now, in connection with any potential claims under the Act and the steps they should take when preparing their wills, to avoid such claims. And we do not believe that charities should be unduly concerned that the case renders their entitlements under wills more open to attack than before.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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