Ilott v Mitson & Ors [2015] EWCA Civ 797 (27 July 2015)

[Legal Beagles]

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This appeal is about the quantification of an award for maintenance pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"). On 7 August 2007, DJ Million made an award of £50,000 in favour of the appellant, the adult child of the deceased. On 3 March 2014, Parker J ([2014] EWHC 542 (Fam), [2015] 1 FLR 291) dismissed her appeal from that order. The issues on this appeal are whether the order of DJ Million should have been set aside for error, and, if so, and this court decides to re-exercise the discretion, whether reasonable financial provision can and should be made for the appellant's maintenance which relieves her everyday living expenses without affecting her state benefits. The latter is the crucial question of law, and I answer it in paragraphs 59 and 60 below.

The appellant's claim under the 1975 Act relates to the estate of her late Mother, Mrs Melita Jackson. She died on about 29 June 2004 leaving net estate valued at the date of the hearing before DJ Million at £486,000. Mrs Jackson left a will in which, subject to a legacy of £5,000 in favour of the BBC Benevolent Fund, she left her entire estate to be divided between The Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals ("the Charities"). The appellant was the only child of Mrs Jackson. She and her mother had been estranged for some 26 years and the appellant knew that Mrs Jackson intended not to leave her any of her estate in her will.

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H. OVERALL CONCLUSION
For the reasons given above, the award made by DJ Million was vitiated by legal errors and must be set aside. I would substitute an award of the sum required for the appellant to purchase the Property where she and her husband currently live plus reasonable expenses of acquisition. I would also award her up to £20,000 in cash to provide her with a small immediate amount of additional income.

The answer to the crucial question of law which I posed in the first paragraph of this judgment is, in my judgment, that this is a case where the court can and should make reasonable financial provision out of the deceased's estate for the appellant's maintenance so that her living expenses are relieved without affecting the state benefits on which she relies.

[des8]

Re: Ilott v Mitson & Ors [2015] EWCA Civ 797 (27 July 2015)

Today's judgement was about quantification of the original judgements
It was those judgements which enable non resident or non maintained descendants to contest a will
Mrs llot's counsel makes the following points:
1. There is no reason to doubt that if the written statement and the letter which Mrs.Jackson prepared had been a truthful and accurate account of her reasons, it would have carried weight with the Court, but the judge found that it was neither accurate nor truthful.
2. Mrs. Jackson had shown no interest in any of the three charities during her life and therefore there appeared to be no rational purpose in her bequests. Indeed, I argued before the Court of Appeal that the only inference that could fairly be made was that she had made those bequests out of spite.
3. As the Court of Appeal found, the district judge came to the conclusion that not only was the failure by Mrs. Jackson to make any provision for her daughter unreasonable,but in the particular circumstances she did need provision for her maintenance.
4. This was not, therefore, a case of a judge overturning a will because he did not agree with the choices which the testator had made. It was a case where the Court came to the conclusion that the deceased had failed to make provision where, after investigating the whole circumstances, the Court came to the conclusion that provision ought to have been made.5. The mere fact that an adult child is in straitened circumstances does not of itself constitute sufficient grounds to vary the provisions of the will of a deceased person.In the leading case of Coventry [1980] 1 Ch. 461 the deceased's son was in poorly paid employment and was in some financial difficulty. However,his mother, who inherited on his father's intestacy, was also badly off and her claim clearly should come first
6. The basic message of Ilott -v- Mitson is that when faced with a claim by an adult child under the Inheritance (Provision for Family and Dependants) Act 1975, one should not rule out the claim without a very careful investigation of the circumstances to see whether or not in all the circumstances the child can justify a claim for financial provision, even in cases where the child and the parent had severed their relationship.That fact would be just one of the circumstances which would have to be considered by a Court looking both at the question whether the child should recover at all, and secondly how much should be the provision. In practice, it may well be that the circumstances will have at least some unusual feature about them before an adult child in normal health for a person of his or her age will succeed.

I don't believe this case will be the silver bullet that all disinherited persons hope for. and I would still warn about the cost of contentious probate.