One might think that the freedom of a person to dispose of his
or her assets by Will is, or ought to be, sacrosanct. In England
and Wales, as opposed to many European jurisdictions and
jurisdictions further afar, this is largely the case.
The Inheritance Act 1975
That freedom exists in England and Wales, save that certain
parties (primarily the spouse) but also children and those who have
been maintained by the deceased (see below) may apply to the Court
under the Inheritance (Provision for Family and Dependants) Act
1975 ("the 1975 Act") to be awarded a part of the
deceased's estate in the absence of their having been so
provided under his/her Will. Essentially, under the 1975 Act, the
Court may award a spouse (or someone in similar circumstances) an
amount which it considers to be reasonable provision for their
maintenance or otherwise and in respect of other qualifying
applicants (see below) the Court may make an award in their favour
so far as is necessary with regard to reasonable provision for
their maintenance alone. As appears from the judgment that follows,
the Court finds the determination of 'maintenance' and
'reasonable provision' for such 'maintenance' to be
difficult to determine and there are conflicting views.
Ilott v The Blue Cross & Others
In Ilott v The Blue Cross & Others  UKSC 17,
the application of the 1975 Act came before the Supreme Court, the
highest Court in England and Wales, for the first time. The claim
was brought by the daughter of the deceased Mrs Jackson, namely Mrs
Ilott, who had been estranged from her mother for 26 years. Her
mother had determined as early as 1984 that she was not going to
leave anything to her daughter who had chosen her own way of
The daughter, Mrs Ilott, lived in straightened financial
circumstances. She applied under the 1975 Act for reasonable
financial provision to be provided for her out of her mother's
estate, notwithstanding that her mother had made it clear since
1984 that she was not to receive anything and that her mother was
to leave her estate to charities. A District Judge determined that
Mrs Ilott should receive £50,000 as a reasonable provision
for her maintenance. The Court of Appeal increased that award to
£143,000, with an option to receive a further £20,000
in one or more instalments.
The Supreme Court
The Supreme Court unanimously overturned the Court of
Appeal's Judgment. They said that the Court of Appeal had been
wrong in determining that the District Judge had erred in law. Yet,
they were left with no option other than to allow the District
Judge's award to stand (i.e. £50,000 to Mrs Jackson)
because they could not interfere with a judgment decided upon
evidence which was clearly within his discretion.
In the Supreme Court Lady Hale criticised the 1975 Act and we
concur with her criticisms. Lady Hale said that there was no
guidance as to how the Court should approach an application by an
adult child for reasonable provision for his/her maintenance. One
wonders why a person estranged from her mother for twenty six years
might be able to benefit from her estate solely on the basis that
she was a daughter, when her mother had made clear for over twenty
years that she was not going to benefit.
The 1975 Act permits claims to be brought against the estate of
a deceased by: a spouse or civil partner; a former spouse or civil
partner; a child of the deceased; a person treated as the child of
the deceased; or a person 'maintained' by the deceased.
As mentioned above, a spouse or former spouse is entitled
to reasonable financial provision whether for their maintenance or
otherwise. The other potential applicants are entitled to
reasonable financial provision for their maintenance, as determined
by the Court.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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