Senior Adviser John Brien examines the recent Ilott v Mitson case, which highlighted the changing landscape for family members to contest wills.

When you make a Will, it would not be unreasonable to assume that the wishes you set out in it will be followed to the letter.  However, with more and more Wills being successfully contested by family members who feel that they have not got their ‘fair share’, there is an increasing chance that this may not be the case.

A recent case which has been heard at the Supreme Court highlights the lengths that family members can go to inherit what they see as rightfully theirs.

Ilott v Mitson
Senior Adviser John Brien examines the recent Ilott v Mitson case, which highlighted the changing landscape for family members to contest wills.

When you make a Will, it would not be unreasonable to assume that the wishes you set out in it will be followed to the letter. However, with more and more Wills being successfully contested by family members who feel that they have not got ‘their fair share’, there is an increasing chance that this may not be the case.

A recent case which has been heard at the Supreme Court highlights the lengths that family members can go to in order to inherit what they see as rightfully theirs.

Ilott v Mitson

In Ilott -v- Mitson, the claimant, Mrs Ilott, was the adult daughter of the deceased, Mrs Jackson. Mrs Ilott had left home at 17 and had little contact with her mother between then and her mother’s death 26 years later and Mrs Jackson had made it clear in a side letter to the Will that it was her intention that her daughter should not inherit anything from her estate. Instead, Mrs Jackson had left her entire estate of about £500,000 to three charities.

Despite this background, Mrs Ilott brought a claim under the Inheritance (Provision for Family & Dependants) Act 1975. The Act allows the Court to make specific provision where an application is made by anyone who feels that inadequate financial provision has been made for them in a Will. Adult children, such as Mrs Ilott, can only claim what they need for their maintenance, not a general claim based on perceived unfairness, and the test of reasonable financial provision applied by the Court is an objective one.

In 2007 Mrs Ilott’s claim that the Will did not make reasonable provision for her was upheld by the court and the judge awarded her £50,000. Mrs Ilott viewed this as insufficient and appealed against this decision and a ruling by the Court of Appeal in 2015 increased the award to Mrs Ilott to around £160,000. This was a decision which many, including the charities who have otherwise inherited, felt was too generous based on the particular circumstances of the case. Many also felt that the judgement eroded the principle of testamentary freedom and could open the door for many more claims. The charities appealed the decision to the Supreme Court, the first time a case of this kind had ever reached England’s final court of appeal.

The decision of the Supreme Court, on 15 March 2017, was to overturn the previous ruling of the Court of Appeal and to reinstate the £50,000 originally awarded to Mrs Ilott.

The Importance of this Case

The decision of the Supreme Court is an important one in that it strengthens the understanding that testamentary freedom remains subject only to challenge in the limited circumstances provided by the 1975 Act and the case law developed from it.

We do not know how much of the original £500,000 estate of Mrs Jackson is left after the lengthy legal action, presumably not a great deal. What is known is that anyone who is writing a Will should take proper advice, particularly where there might be reason to challenge the Will. For clients pursuing or defending claims, it is important that they understand how claims under the Act operate, the steps to take (including the role of mediation), the likelihood of success and the potential costs involved.
In Ilott -v- Mitson, the claimant, Mrs Ilott, was the adult daughter of the deceased, Mrs Jackson.  Mrs Ilott had left home at 17 and had little contact with her mother between then and her mother’s death 26 years later and Mrs Jackson had made it clear in a side letter to the Will that it was her intention that her daughter should not inherit anything from her estate.  Instead, Mrs Jackson had left her entire estate of about £500,000 to three charities.

Despite this background, Mrs Ilott brought a claim under the Inheritance (Provision for Family & Dependants) Act 1975.  The Act allows the Court to make specific provision where an application is made by anyone who feels that inadequate financial provision has been made for them in a Will.  Adult children, such as Mrs Ilott, can only claim what they need for their maintenance, not a general claim based on perceived unfairness, and the test of reasonable financial provision applied by the Court is an objective one.

In 2007 Mrs Ilott’s claim that the Will did not make reasonable provision for her was upheld by the court and the judge awarded her £50,000.  Mrs Ilott viewed this as insufficient and appealed against this decision and a decision by the Court of Appeal in 2015 increased the award to Mrs Ilott to around £160,000.  This was a decision with which many, including the charities who have otherwise inherited, felt too generous based on the particular circumstances of the case.  Many also felt that the decision eroded the principle of testamentary freedom and could open the door for many more claims.  The charities appealed the decision to the Supreme Court, the first time a case of this kind had ever reached England’s final court of appeal.

The decision of the Supreme Court, on 15 March 2015, was to overturn the previous decision of the Court of Appeal and to reinstate the £50,000 originally awarded to Mrs Ilott.

The Importance of this Case

The decision of the Supreme Court is an important one in that it strengthens the understanding that testamentary freedom remains subject only to challenge in the limited circumstances provided by the 1975 Act and the case law developed from it.

We do not know how much of the original £450,000 estate of Mrs Jackson is left after the lengthy legal action, presumably not a great deal.  What is known is that anyone who is writing a Will should take proper advice, particularly where there might be reason to challenge the Will.  For clients pursuing or defending claims, it is important that they understand how claims under the Act operate, the steps to take (including the role of mediation), the likelihood of success and the potential costs involved.