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Ilott v Mitson - Is The Principle of Testamentary Freedom Restored?

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The principle of testamentary freedom is a long standing feature of English law. Put simply, this means that a person who creates a Will has the right to leave their estate to anyone they wish to do so.

Although there are many ways in which the validity of a Will may be challenged, it is the rising number of claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) which has brought this principle under scrutiny. The Act allows for certain categories of people to bring a claim against the estate on the basis that that the will or intestacy rules did not leave them with reasonable financial provision. The Court can therefore intervene in certain circumstances to go against the wishes of the deceased and redistribute the estate. This Act is often seen as an erosion of the principal of testamentary freedom.

One of the categories of people who can make an application under the Act (and one which causes a lot of debate) is ‘adult children’. In theory, this could create a situation in which an adult child can make a claim, and potentially recover, a substantial amount of the Deceased’s estate despite the Deceased making a conscious decision to exclude them from their will.

The case of Ilott v Mitson provides a perfect example of the situation described above.

Heather Ilott was the only child of Melita Jackson and left home at the age of 17. Mrs Ilott had a troubled relationship with her mother and had left home to cohabitate with her partner, whom her mother disapproved of.  A lifelong estrangement between mother and daughter followed. Mrs Ilott went on to marry her partner and together they had five children. Mrs Ilott, her husband and their five children lived together on state benefits.

Mrs Jackson died in 2004, leaving her estate, valued at almost £500,000, to various animal charities. Despite living independently from her mother, Mrs Ilott subsequently made a claim under the Act on the basis that her mother’s will did not leave her with any reasonable financial provision.

The case first appeared in the County Court in 2007 before DJ Million and Mrs Ilott was awarded £50,000 for her maintenance on the grounds that her mother’s will did not leave any reasonable financial provision for her. This was simply the beginning of the long running saga as both Mrs Ilott and the charities lodged appeals against the decision. In 2015, the Court of Appeal increased Mrs Ilott’s entitlement to just over £160,000. Mrs Ilott was awarded around a third of the value of the estate and the charities, whose existence was reliant on gifts such as this, lost their entitlement to circa £160,000. This was heralded in the media as a signal that the principle of testamentary freedom in English law was all but dead if the court could simply ignore the wishes of the deceased and award an adult child so much of the estate.

The Charities then appealed again and the matter went to the highest court in England and Wales, the Supreme Court in late 2016, with Judgment being released on 15 March 2017. The Supreme Court overturned the Court of Appeal’s decision and restored DJ Million’s original award of £50,000.

Some may disagree with Mrs Ilott’s entitlement to £50,000 altogether, arguing that this award in itself demonstrates a diminishing principle of testamentary freedom. Nevertheless, the Judgment handed down by the Supreme Court has completely overruled the decision reached by the Court of Appeal to increase Mrs Ilott’s entitlement and has effectively placed a stricter approach on the meaning of reasonable financial provision. The wishes of the deceased were given greater weight by the Supreme Court than the Court of Appeal had placed upon it.

Only time will tell the extent to which the Judgment given by the Supreme Court in the case of Ilott v Mitson has helped to restore the principle of testamentary freedom in English law. 

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