The issue of contested wills remains a vexed one in the English courts, but a recent ruling may provide new clarity in this area, argues Nick Mendoza, a solicitor at Howard Kennedy.

Unlike some jurisdictions, English law recognises the principle of “testamentary freedom”, whereby a person is free to choose to whom they will leave their estate upon their death. Testamentary freedom is, however, restricted by the Inheritance (Provision For Family and Dependants) Act 1975, which provides that a family member or dependant can make a claim against the estate of the deceased in circumstances where no provision, or inadequate provision, has been made for them under the terms of the deceased’s will, or under the intestacy provisions that come into effect where the deceased failed to leave a will.

The case of Ilott v Mitson involved a claim brought under the Act. Melita Jackson died on 10 July 2004. Under the terms of her will she left her estate to be divided between three animal charities. Her estate was worth £486,000 (around $800,430).

The deceased made no provision in her will for her only daughter, Heather Ilott.  Mrs Ilott had left home in 1978 when she was 17 years old and had seen her mother only twice since leaving home. The court heard that Mrs Ilott had refused any other contact with her mother. In a letter that she left with her will, the deceased set out the reasons why she had disinherited her daughter, stating that she considered that she owed no moral or financial obligation to provide for her daughter, and explaining that her daughter had not been financially dependant upon her since she had left home.

Mrs Ilott was married with five children, four of whom lived at home with Mrs Ilott and her husband. The family was largely reliant upon state benefits for financial support. Following her mother’s death Mrs Ilott made a claim under the Act for reasonable financial provision to be made for her.

The judge at first instance was required to strike an appropriate balance between the factors which the Court must take into account when considering a claim of this nature, as set out in section 3 of the Act. These include the financial resources and needs of the applicant, the financial resources and needs of the any other beneficiary of the estate and the size and nature of the estate.

The judge found in Mrs Ilott’s favour, concluding that the deceased had failed to make reasonable financial provision for her daughter. Mrs Ilott was awarded £50,000.

Mrs Ilott considered that £50,000 was insufficient and so appealed the decision. Her appeal was dismissed. However, she was granted leave to appeal to the Court of Appeal and was successful upon this appeal. The matter was subsequently remitted back to the High Court for a decision on the level of Mrs Ilott’s award.

On what basis did Mrs Ilott succeed in her appeal? The court commented that when balancing the section 3 factors account must be taken of the circumstances of each case. In this case the court gave weight to Mrs Ilott’s modest income and limited earning capacity. The court also appears to have given weight to the fact that there were no other beneficiaries of the estate with competing financial needs.

This decision does, initially, appear to create some uncertainty for practitioners. In claims brought by adult children the decisive factor is usually their financially dependency upon their parent. However, Mrs Ilott’s claim succeeded despite her having no financial dependency upon her mother. The court also apparently disregarded the deceased’s wishes, and her clearly stated reasoning as to why she had excluded her daughter from her will. 

Consequently it may now prove more difficult to advise a will-making client who wishes to exclude a child from their estate as to the probability that the exclusion is likely to be successfully challenged. The case could also encourage disgruntled children to bring claims where they have been cut out of a parent’s will.

However, each case turns on its facts, and it may be concluded that it was the distinguishing facts and circumstances of this case that led the court to its decision, rather than a general shift in the court’s approach to these types of cases.

Mrs Ilott’s strained financial circumstances were of particular relevance in this case, as Arden LJ noted, “the fact that the state makes provision for financial hardship does not mean that it is reasonable for a testatrix to make no financial provision for a child.”

A further crucial factor in this case is that, as a result of the decision, the beneficiaries who lost out were charities. One can only wonder whether the court would have reached the same decision if the beneficiaries who stood to lose out were other relatives or friends of the deceased.