Ilott –v- Mitson: Back to Square One

it was not enough to demonstrate a close family connection only, but that must be ‘some sort of moral claim…beyond a blood relationship, some reason why it can be said in the circumstances, it is unreasonable why no or no greater provision was in fact made [Re Coventry].

The Supreme Court has ruled, unanimously, that the original judgement made in this case  should stand: that Mrs Ilott’s long estrangement from her mother and her financial independence mean that an award should be made, and that £50,000 (from an estate worth approximately £450,000)  had been an appropriate sum to provide funds for Mrs Ilott’s maintenance. Some of this money could be used for the provision of new household items that were in poor repair and the capital awarded might not therefore affect the family’s benefits entitlement.

Judgment was this week handed down in the Supreme Court on the Ilott v Mitson case; heard in December 2016, some 12 years after the date of Mrs Jackson, the testator at the centre of the story. Ilott v Blue Cross

Essentially, the Supreme Court overturned the order made in the Court of Appeal, stating that the original judgement had been correctly decided; on the basis of the information given to DJ Million, he had not erred in either a legal judgement or a factual one. It was therefore not correct for the Court of Appeal to amend the award at all and the award made by them was not on the basis it should have been.   Of the seven Lord Justices hearing this final appeal by the charities against the decision, all seven were in agreement with the judgment that the Court of Appeal had calculated the award made to Mrs Ilott incorrectly.

In the 48 paragraph judgment, Lord Hale quoted the criteria for the 1975 Act for the provision for family and dependants, setting out the differences in the discretion of the Court on cases of a partner or spouse and the ‘maintenance’ order that was the only compensation that could be made for a child.

The judgment also focuses on the potential misunderstanding in connection with the phrase ‘reasonable financial provision’;

“Reasonable financial provision is….what is reasonable for [the Claimant] to receive. These are words of objective standard of financial provisions, to be determined by the court. The Act does not say that the court may make an order when it judges that the deceased acted unreasonably”

This echoes an earlier judgment in Re Coventry [1980] which also stated that on this basis it was not enough to demonstrate a close family connection only, but that must be ‘some sort of moral claim…beyond a blood relationship, some reason why it can be said in the circumstances, it is unreasonable why no or no greater provision was in fact made’

“Circumstances of the relationship between the deceased and the claimant may affect what is the just order to make…the provision which it is reasonable to make will, because of the distance of the relationship, or perhaps of the conduct of one or other of the parties, be to meet only part of the needs of the claimant.” (para 22)

The principle was repeated in para 35 of the judgment, reiterating that the original judgment made no error when considering the nature of the relationship between mother and daughter: emphasising how some adult children may have contributed to the wealth of their parents, or to their health or wellbeing contrasted with the case in hand, when mother and daughter had been estranged for several decades.

“A judge ought in such circumstances to attach importance to the closeness of the relationship in aiming at his assessment of what reasonable financial provision requires. The judge considered each of the factors…  The long estrangement was the reason the testator made the will she did. It meant that Mrs Ilott was not only a non-dependant adult child but made her life entirely separately from her mother and lacked any expectation of benefit from her estate…the judge was perfectly entitled to reach the conclusion which he did, namely that there was a failure of reasonable financial provisions, but that what reasonable financial provision would be was coloured by the relationship between mother and daughter”.

The point was emphasised further in paragraphs 46 and 47: the nature of the relationship between mother and daughter being fundamental clearly making this as a deciding factor

Lady Hale made a further contribution to the judgement, not to dissent but to clarify the perspective offered to the judges by current public consultations including the most recent Law Commission Report in 2011, which might have been offered more satisfactory guidance on the factors taken into account. Given the changing social climate since the 1975 Act was passed it might have been helpful for their Lordships to have more guidance on deciding whether an adult child was deserving or undeserving of reasonable maintenance, in the absence of dependency or disability.

What does this mean for people making wills?

The Supreme Court considers testamentary freedom to be paramount: that the law as it stands (however ill-suited some might feel it is to today’s social structures, it has not been amended by the most recent Law Commission consultation) was correctly applied in the initial case: the fact that Mrs Ilott was a family member and the charities benefitted from the estate was not a reason to depart from the original judgement. The estrangement had been originally referred to in a side letter to a will made by Mrs Jackson in 1984 as well as  the later will of 2002, and this side letter also made it clear that Mrs Jackson had considered the moral obligation she had and stated that she felt no moral or financial obligation towards her daughter, given their strained relationship.

What do clients need to do to ensure their wills are followed?

It is clear that no one is above the court’s authority to adjust the estate for beneficiaries who should have received some benefit. However, for those who have adult children who are financially independent and to whom no promises have been given or assurance of expectation made, the testator is free to choose what they want to do: if the testator has been receiving monies from a child, then the testator may ‘owe’ a moral duty to that child, to be represented by a financial gift.  In case there is doubt as to whether the testator has considered the claims to which they should give effect, it is wise to record that they have been considered. The closeness of relationship between the child and the testator be a factor relevant in any claim against the estate and a testator may wish to record details of the relationship and the reasons for their dismissal of familial bonds and why they have left their estate to others, so that executors have material to show the testator’s perception of the relationship to set against those of a claimant.

What does this mean for adult children excluded from benefit under a will?

If there is little to show the closeness of relationship between child and parent, no promises of future entitlements or great expectations, no financial dependency and the child is not disabled, or in need, their prospects of a successful claim against a parent’s estate will be diminished by this ruling, particularly if they are financially self-supporting.

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Your will can be ignored, say judges.

Your will can be ignored, say judges – Telegraph.

Actually, it might be phrased (verbatim from the judgment)

Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only

For the judgments in questionm, the Bailii references are:  Ilott v Mitson & Ors [2015] EWCA Civ 797 (27 July 2015) and the previous judgment of Ilott v Mitson & Ors [2011] EWCA Civ 346 (31 March 2011).

The case centres around the unhappy tale of a mother (Melita Jackson) who, being bereaved whilst pregnant, had her only child, a daughter (Mrs Ilott).  Mrs Jackson, died leaving a will that expressly excluded her daughter from benefit, leaving all her estate to animal charities, despite there being no obvious connection or affection for animals or such charities

There is no evidence that the deceased had any connection with the charities, or that, during her lifetime, she had any particular love of, or interest in, either animals or birds.

Mrs Ilott left home whilst a teenager of 17, to live with Mr Ilott, whom she later married.  Mr Ilott and Mrs Ilott have a very low income, below £5000 a year, have five children, and are entitled to state benefits.  They are eligible to buy their home, under the right to buy legislation.  Their schedules of expenses show a very modest standard of living.

Mrs Ilott and her mother were estranged following the departure from the family home.   Although both parties contributed towards the estrangement, three attempts were made at reconciliation, but none was successful.  The trial judge considered that the evidence showed Mrs Jackson having been

unreasonable, capricious and harsh

towards Mrs Ilott by excluding her from the will, but that on the facts of this case, estrangement ought not to affect the size of the amount awarded.

The latest decision concentrates on the factors to which the court should have regard when considering a claim made under the IPFDA and considers in particular the interconnection between the beneficiaries under a will, and the requirements that they might reasonably expect, and the needs of those who are closely connected to the deceased, and the financial provision *for maintenance* that might be appropriate.  In this case, there was no financial need on the part of the beneficiaries of residue – as charities, this was a windfall.  On the other hand, the daughter had substantial need.   The fact that Mrs Ilott did not have the ability to earn much salary or any pension provision was not considered detrimental:  Mrs Ilott contributed towards society, albeit in her capacity as mother to five children

while she may not have made the choices in life that her mother thought were necessary for her to make a success of her life, she has made a success of her life in other ways through being a mother and homemaker. Third, not only may it be difficult to apportion fault here but there may not have been fault on anyone’s part. Estrangement may simply have been the result of Mrs Jackson’s inability to make lasting relationships with anyone, of which there is other evidence. 

The fact that Mrs Ilott was an independent adult with no disabilities who was not financially dependent on the deceased limited the award that would be given to her.

Mrs Jackson’s obligations and responsibilities to the appellant (section 3(1)(d)):

Ms Stevens-Hoare submits that the ordinary family obligation weighs to some extent in her favour under section 3(1)(d) but she accepts as she is bound to do that the fact that Mrs Jackson had no responsibility for her as an adult child living independently weighs against her.

and:

Mrs Jackson’s testamentary wishes:

Ms Stevens-Hoare submits that the judge was wrong to pay such high regard to the deceased’s testamentary wishes. There was no other beneficiary’s needs to which the court had to pay attention. Since the trial judge had found that it was unreasonable to exclude the appellant, there had to be consideration of reasonable provision. Ms Reed submits that DJ Million was correct to have regard to the deceased’s testamentary wishes: see per Oliver J in Re Coventry dec’d [1980] Ch 461 (“An Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases.”).   In my judgment Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only. In my judgment that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation.

3 Matters to which court is to have regard in exercising powers under s. 2.

(1)Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

Woman who disowned mother fails in claim on estate | STEP

Woman who disowned mother fails in claim on estate | STEP.

 

Conduct does affect the way the court views the situation of a child claiming for support under the IPFDA.  And a letter outlining the reasons for excluding a child has significant weight.

In considering the request, the judge was entitled to consider Wright’s conduct toward her mother – Mary Waters had left a letter explaining her reasons for disinheriting her daughter. A key element was that Mary Waters had sent her daughter GBP10,000 to invest on her behalf in 1998, but Patricia Wright later refused to return this money, insisting that it was a gift. In her letter of wishes, Mary Waters stated: ‘My daughter has already taken without my consent GBP10,000 of my savings’.

There had later been a serious falling-out between mother and daughter on other more personal matters. These quarrels culminated in Patricia Wright sending her mother a letter disowning her and wishing her dead, and stating that she did not wish to communicate with her any more. There was no further contact between them.

One might conclude that if mother and daughter had made it up and become marginally less estranged, the IPFDA letter, if unamended, might have been less effective.