Ilott v Mitson and others – Challenging a Will | Mayo Wynne Baxter
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Ilott v Mitson and others – Challenging a Will

The recent case of Ilott V Mitson and others [2015] EWCA Civ 797 has upheld the challenge by a disinherited daughter to seek financial provision from the Estate of her estranged mother, but increased the award given to the daughter. This case has helped clarify the law in contentious probate and drawn the public’s attention to the risks of legal challenges if someone leaves a family member out of their Will.

The daughter, Heather Ilott, was estranged from her mother Mrs Jackson for 26 years after she left home at 17 to live with Mr Ilott. Mrs Jackson did not approve and despite several reconciliation attempts, the two remained estranged until Mrs Jackson’s death in 2004. Mrs Jackson left a Will, but cut out her daughter completely, leaving all her Estate to three charities – The Blue Cross, RSPB and RSPCA (the charities), whom she had no links with. Mrs Ilott challenged the Will, claiming that her mother ought to have made some financial provision for her. The charities opposed her claim, arguing that Mrs Jackson ought to be able to leave her estate to whomever she wishes.

The court hearings

The case is a long running matter, starting in the County Court in 2007 and ending up in the Court of Appeal for the second time in July 2015. In the first hearing, DJ Million decided that, after considering all the circumstances, Mrs Jackson ought to have made reasonable financial provision for her daughter, and he awarded her a lump sum of £50,000, which would provide an income of £4,000 per year from the estate.

An appeal from Mrs Ilott to increase that amount, and a cross-appeal from the charities, went to the High Court. They found in the charities’ favour and dismissed the claim. Mrs Ilott appealed to the Court of Appeal. They overturned the decision of the High Court and found that Mrs Ilott should have received some financial provision from her mother. They remitted the question of how much she should have back down to the High Court.

The High Court considered the matter and found that DJ Million’s had made a reasonable award of £50,000 and they upheld this amount. Mrs Illot appealed against this decision and the matter was recently heard in the Court of Appeal on 27 July 2015. The Court considered the relevant law and increased the amount awarded to Mrs Ilott to £143,000, which would enable her to purchase her home from the Housing Association, and an option of up to £20,000 lump sum which would produce a small yearly income.

When should reasonable financial provision be made?

It is generally accepted that people can leave their money to whomever they want. This means they can leave out some people and favour others. However there has always been a route to challenge the provisions of a Will, via the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’). Spouses, civil partners, children and dependants are able to challenge a Will or intestacy rules if they were not given reasonable financial provision out of the Estate of the deceased. Children, such as Mrs Ilott, can claim for maintenance only.

The 1975 Act sets out factors which a Court must consider (and therefore so must any party considering such a challenge) when deciding whether the Will or intestacy rules make reasonable financial provision for the Applicant, and if not, what provision ought to be made.

These factors include:

  • The financial resources and needs of the applicant, and other beneficiaries
  • The obligations and responsibilities of the deceased towards the applicant and other beneficiaries
  • The size of the estate
  • Any physical or mental disabilities.

All cases will turn on their facts and a Court will consider the particular circumstances in detail when coming to its decision.

In this case, the Court considered Mrs Ilott’s straightened financial circumstances, having no pension and limited earning capacity, and her dependency on state benefits. They weighed up the various factor under the 1975 Act, including the size of the Estate and Mrs Jackson’s unreasonable conduct towards her daughter. Further, Mrs Jackson had no link to the charities and there was no rational purpose for her bequests. These all led to the Court deciding that reasonable financial provision had not been made for Mrs Ilott from Mrs Jackson’s Will.

How does a Court consider what provision should be made?

Once a Court has decided that a Will or intestacy rules has not made reasonable financial provision for the applicant, it will then need to consider what provision would be reasonable in the circumstances.

A Court will therefore consider the factors set out in the 1975 Act to determine what would be a reasonable award. It is a balancing exercise between the needs of the other beneficiaries, and the applicant. It can be difficult to predict what a Court will decide, as much depends on the circumstances of a particular case and the Judge’s views. An adult child who has lived independently will need to prove their case and that they have particular needs or the circumstances are such that it would be reasonable to make financial provision for them.

In this case, the Court considered Mrs Ilott’s limited financial circumstances and reliance on state benefits. Given that a child can only make a claim for maintenance, the Court considered how to make reasonable provision for her without ending her state benefits. They decided that a lump sum to enable her to buy her house, which would mean she did not have to pay for rent, would be suitable as well as a small yearly income.

What does it mean for you?

If you are thinking of leaving your entire Estate to the cat’s home or other charity, or leaving out an estranged child from your Will, you need to think carefully about your children’s financial circumstances, your reasons and whether they could challenge your Will after you have gone. A challenge will mean additional costs to the Estate before the legacies are paid. Talk to your solicitor about your wishes and set them out carefully and truthfully.

You might want to challenge your parent’s Will if you were not left anything. In this case you need to consider why you weren’t given an inheritance, as well as your circumstances and those of the other beneficiaries to the Estate. Take legal advice as to whether you might be able to make a successful claim. It can be a costly and stressful exercise to challenge a Will, particularly if you lose and the court does not think provision should be made for you, and so you need to consider your position carefully.

Lastly, this case highlights the difficulties that charities face when they are left legacies in a Will. Legacies make up a huge part of most charities’ income, and so are very valuable. However charities can find themselves in a difficult position when the legacies are challenged by family members, and decisions have to be made as to whether to fight any challenge and the likely costs.

In any situation, it is important to get good legal advice so that you can consider your options and how you want to proceed. Our Contentious Probate team can advise you on any claim you might have against an Estate and how you can challenge a Will, as well as what you can do if you are an Executor and the Will is being disputed.

By Miranda Jenkins


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