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Ilott v Mitson – Re-writing a Deceased’s Will?

I alluded briefly to the issues surrounding a claim against an estate and who can claim in a previous post.

The effect of the Inheritance (Provision for Family and Dependants) Act 1975 is to allow dependants (not necessarily children) who rely on the financial support of the deceased but who are not a beneficiary of the estate to make a claim for financial support from the estate. It should not be necessary to use the act if there is agreement amongst the beneficiaries to a variation of the will or the intestacy rules. However some very bitter disputes can arise out of cases where the deceased has explicitly excluded a person from being a beneficiary (sometimes with extensive written reasons) but that person is in need. Perhaps the most difficult situation is where the person in need is an adult who has set up home independently and does not need the money.

The issue has become more complicated over the last year following the Court of Appeal’s judgment in Ilott v Mitson ([2011] EWCA Civ 346). The judgment concerned whether an adult ‘child’ who has been left out of a will can make a claim against their parent’s estate and challenged some long-held assumpations:

“Melita Jackson…died…leaving a net estate of some £486,000. After some pecuniary legacies (which are not material for the purposes of this appeal) she left the entirety of her residuary estate to…(the charities)…

…The deceased’s will, which is dated 16 April 2003 makes no provision for the appellant, who is now aged 50, and who is the deceased’s only child, albeit estranged from the deceased at the date of the latter’s death. The appellant is a married woman with five children, and lives in modest circumstances. The deceased was a widow whose husband (the appellant’s father) had died in an industrial accident in 1960, whilst the deceased was pregnant with the appellant.

The appellant took proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act)…the district judge held pursuant to section 1 of the Act, that “the disposition of the deceased’s estate effected by (her) will…..(was) not such as to make reasonable financial provision” for the appellant, and awarded her a lump sum of £50,000…

…the case raises in stark form the approach which falls to be adopted when an adult child seeks to claim against the estate of a deceased parent…

…The first and most frequently cited case on the subject is the decision of this court in Re Coventry (deceased)…In my judgment, this case bears careful examination both for what it says and, as importantly, for what it is believed to say, but does in fact not say…

… Oliver J questioned whether this was the sort of case in which it was the intention of Parliament that the court should interfere to upset the dispositions which the legislature had made on the deceased’s behalf …and decided that it was not…

It is, as I have already indicated, important to note both what was said and what was not said in Re Coventry. It is equally important, in my judgment, to resist the temptation to impose judicial glosses onto the statute…

…Oliver J’s decision was upheld in this court, and Re Coventry both at first instance and in this court remains good law. It is, however, to be observed that one of the arguments advanced on behalf of the appellant in Re Coventry was that the judge had made a “moral obligation” a pre-condition to a successful application under the Act by an adult child…Goff LJ..rejected that criticism “at once”…

… The totemic phrase in section 2 (1) of the 1975 Act is “reasonable financial provision”. This phrase has a constant meaning, but its application in any individual case must take account of the circumstances of the case and current social conditions and values. There were three notable value judgments by the District Judge in this [Ilott v Mitson] case. In the first of these, the District Judge held in a passage already cited that the applicant was entitled to make her life with a partner of her choice and to have a family of her own. In the second of these, the District Judge held that it was reasonable for her to wish to remain at home for the time being rather than work (outside the home). In the third of these the District Judge held that families, such as those of the applicant and her husband, “were not all to be blamed for their lack of income which makes a claim for tax credits necessary and possible.” These were evaluations for the District Judge to make in the circumstances of this case. In my judgment the conclusions of the District Judge cannot be said to be plainly wrong.”

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