Leaving Property under a Will : the impact of IIot v Mitson

Are we free to choose who we leave our property to under a will?

It is generally understood that a testator can leave their property under a Will, to whomever they wish in accordance with what is known as "testamentary freedom". However, the Inheritance (Provision for Family and Dependants) Act 1975, (the "Act") allows certain categories of people – spouses or civil partners, former spouses or civil partners, any person treated as a child of the family, anyone maintained by the deceased, a cohabitant living with the deceased as their spouse and any child of the deceased – to apply to the court for financial support from the deceased's estate if they can show that the Will fails to provide them with "reasonable financial provision". If the court agrees then, subject to a number of factors, it must decide what, if any, financial award to make from the estate.

IIot –v- Mitson and others – How watertight is a will?

On 12 December 2016, the Supreme Court heard the appeal in the case of IIot –v- the Blue Cross and others UKSC 2015/0203. We are still waiting for the judgement but this is the first time that a case of this nature has been heard by the Supreme Court. This makes it particularly significant as its judgement will be binding on the lower courts and will shed light on how much discretion the court has to determine the amount of maintenance, if any, adult children can claim if they have not been included in their parents' wills or if they feel that the provision is unsatisfactory.

Background

Mrs Ilot is the only child of Mrs and Mrs Jackson. Her father died before she was born and she was estranged from her mother at the time of her mother's death in 2004. Mrs Ilot had left home at 17 to live with Mr Ilot, who she later married, and with whom she had five children. Mrs Jackson disapproved of her daughter's relationship and this lead to the pair becoming estranged. Attempts to reconcile were made but these were unsuccessful. Although the courts did not apportion blame for this state of affairs, Mrs Jackson's behaviour towards her daughter was described as "unreasonable, capricious and harsh" by the court.

Mrs Ilot and her husband lived in very straitened circumstances; surviving primarily on state benefits and tax credits totalling less than £14,000 per annum. Mrs Ilot had never been on holiday, had limited means to buy clothes for her children and was constrained in terms of the food she could buy.

When Mrs Jackson died, she left a net estate of circa £486,000 which, according to the terms of her will, was to be divided between three charities. Mrs Jackson had no connection to these charities in her lifetime and had written to her daughter to say that she did not want her to inherit anything from her estate. In spite of this, Mrs Ilot brought a claim alleging that, as a child of the deceased, she was entitled to receive maintenance payments from the estate.

What lessons can we learn from this?

It is hoped that the Supreme Court will offer guidance on (i) when it is appropriate to override the express wishes of the testator and make an award, and (ii) how to quantify that award. We will provide an update once the judgement is known.

In the meantime, individuals should not be dissuaded from preparing their Wills. (see http://www.hewetts.co.uk/will-preparation.htm for further information). These remain the best way of ensuring that their wishes are carried out following their death and, as long as they are properly drafted and executed, disgruntled beneficiaries will find it difficult to bring successful claims. It is impossible to avoid the risk of any litigation arising but we are able to help you minimise those risks by providing professional legal Will preparation advice.

If you have any questions about contentious probate and Will Preparation, please do not hesitate to contact Debbie Sadler at mailto:d.sadler@hewetts.co.uk or on 0118 957 5337.

 

Published on 17/01/2017

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