Posted by David Cobern on 17th August 2015

courtSince the passing of the Inheritance (provision for family independence) Act 1975, the courts have had the power to make provision for minor children and dependents of a deceased person who has not made adequate provision for them by their Will.

English law has historically respected the right of an individual to make provision (or indeed no provision) as they see fit for their independent adult children.

The recent case of Ilott -v- Mitson appears to have changed that. Mrs Ilott’s mother, Mrs Jackson, made no provision for her estranged daughter for reasons referred to in side letters with her Will. The letters described how her daughter had failed to stay in contact for many years, and had married a man of whom Mrs Jackson did not approve.

Instead, Mrs Jackson left her entire estate of approximately £500,000 to charities. Mrs Ilott challenged under the Inheritance Act claiming that her mother had not made adequate provision for her.

In deciding the case, the court noted that the reasons set out in Mrs Jackson’s side letter with her Will were, in its view, ‘capricious, arbitrary, and vengeful’. It was also noted that Mrs Jackson had no connection with the charities she wanted to pass her estate to.   In ordering a lump sum of £164,000 for Mrs Ilott, the court made sufficient provision for her to house herself, and to set aside an additional sum of £20,000. The decision was crafted in such a way as to ensure that Mrs Ilott would not lose her state benefits.

The important message from this case is that the court has effectively imposed an obligation on parents to consider making reasonable financial provision for their children, even into adulthood where there is a need. For parents who, for whatever reason, do intend to cut their children out of their Will, reasons such as dislike or disapproval are unlikely to find favour with the court. Additionally, the parent will need to show that there is some real connection with the intended alternative beneficiary of their estate.

Claimants will need to show a real need. Those who have done reasonably well, or are already provided for, are less likely to succeed.

This is a Court of Appeal decision. The charities may yet appeal to the Supreme Court.

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