A number of high profile contested Wills cases have dominated the headlines in recent years, reigniting the debate on testamentary freedom in legal circles. One of the most significant and publicised cases is that of Ilott v Mitson [2017] UKSC 17 which involved a claim by an estranged daughter, Heather Ilott, against her Deceased mother’s estate.
The estrangement had continued for 26 years with all attempts at reconciliation failing. The mother died in 2004 leaving the bulk of her £486,000 estate to three charities. There was no provision for the daughter. The daughter claimed under the Inheritance (Provision for Families and Dependants) Act 1975 for reasonable financial provision.
The case was heard first by DJ Million who awarded £50,000 (around 10% of the estate). Subsequently on first appeal in 2009, Eleanor King J overturned the District Judge’s ruling leaving the daughter with no award. In 2011, the case was heard again by the Court of Appeal who reinstated the original £50,000 award.
The daughter appealed again and in 2015 the Court of Appeal substituted the original award with £143,000 to allow the daughter to purchase her home and a further £20,000 payable in installments, so as not to affect her benefit entitlement.
After the Court of Appeal ruling, the three charity beneficiaries were given permission to appeal to the UK Supreme Court. The Court’s unanimous judgement, delivered in March 2017, restored the original order of DJ Million.
The Supreme Court reiterated that reasonable financial provision should be limited to maintenance only for claimants other than spouses or civil partners, and that this was a ‘deliberate legislative choice’ demonstrating the significance attached to testamentary freedom by English law. ‘Maintenance’ could not be extended to anything that the applicant simply wanted to have (in this case, the daughter wanted to purchase her Housing Association house). It further found that simply, the s3 factors should be considered where relevant and a single assessment for reasonable financial provision drawn from the evaluation. This was the approach of DJ Million, and it was correct.
The Supreme Court further noted that the Court of Appeal’s order did not sufficiently take into account the long period of estrangement or the mother’s “very clear wishes” – the latter showing clear support for the principle of testamentary freedom.
It is noteworthy that DJ Million could have made no order at all. The applicant’s self-sufficiency (albeit relying heavily on public funds), coupled with her lack of expectation, lack of care for her mother and lack of contribution to her mother’s wealth were all factors that would have made the decision to dismiss the case reasonable. DJ Million came to a different conclusion and for this reason, dismissal was not an option to later courts who examined whether the proper process had been followed in reaching the decision, rather than the decision itself. This principle was confirmed in Martin v Williams [2017] EWHC 491 (Ch).
Since the Ilott case, other successful cases have seen similar awards of around 10% – but in Wellesley v Wellesley & Ors [2019] EWHC 11 (Ch) this year, the judge reiterated that this was not by any means a rule of thumb. Every claim is decided on its own facts and it is always vital to get legal advice early on.
For more information about contesting a Will, visit www.aprilking.co.uk.
