The recent case of Illott v Mitson, where the terms of a mother’s Will were overridden to provide for her estranged daughter, took the media by storm. Some commentators believe this case wholly undermines the longstanding principle of testamentary freedom (ie, that you can leave your estate to whomever you like). However, others consider the level of press attention this case has received as disproportionate. What are the real implications of this decision, and what does it mean for the principle of testamentary freedom?
Illott v Mitson
In this case, the deceased bequeathed her entire £500,000 estate to three animal charities, and nothing to her estranged daughter. A letter of wishes explained why she had decided to cut her daughter out of the Will, and she also wrote to her daughter informing her of her wishes. The daughter had struggled financially for many years, living in Housing Authority accommodation, receiving state benefits and supporting five children.
Shortly after her mother’s death, the daughter brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (known as “the Inheritance Act”), claiming she had not been adequately provided for under her late mother’s Will. The daughter’s claim was essentially for the sum of £143,000, to enable her to purchase her home.
The Court initially found that the daughter had been unreasonably excluded from her mother’s Will, and awarded her the sum of just £50,000. The daughter appealed, claiming the award was insufficient; the charities also appealed, on the basis that no award should have been made at all.
A further four hearings have taken place over a period of eight years, with the most recent decision being in the Court of Appeal, where the daughter was awarded the full £143,000. The Court held that there was no need to show a moral obligation existed between the deceased and her daughter in order for the claim to succeed. The Court did not find a sufficient connection between the mother and the charities to override the needs of the daughter.
Impact
Does Illott introduce new ground-breaking law? No - adult children have always been able to make claims under the Inheritance Act. However, it had previously been thought that claims by adult children would be rather difficult; this ruling demonstrates how a child’s desperate financial circumstances can result in a significant departure from the testator’s wishes.
What can we learn from this case?
Testators should not be discouraged from making a Will for fear that a claim may later be brought against their estate. Making a Will is the first step towards ensuring that your estate largely passes in line with your wishes.
Preparing a detailed letter of wishes to accompany the Will and explaining the division of the assets is recommended. Following Illott, this could be particularly pertinent if money is left to a charity rather than family members. The letter of wishes (or the Will itself) should ideally note any connection between the testator and the chosen charity, particularly if there is no obvious affiliation. Although such letters are not legally binding and cannot prevent a claim being brought, they are contemporaneous evidence of the testator’s wishes and so are helpful in defending any claim.
If it is likely that someone excluded from a testator’s Will may later make a claim against the estate, that person could be left a small gift under the Will to discourage them from bringing such a claim. A “non-contest” clause could accompany that gift, meaning that if the individual does contest the Will, they forego the gift. Alternatively, including a discretionary trust in the Will could allow individuals chosen by the testator (known as trustees) ultimately to determine how estate is distributed.
These options are, of course, a form of compromise for the testator. However, they are often more attractive than the possibility of the estate becoming embroiled in expensive litigation, as was the case in Illott.
Incidentally, the charities have very recently been granted permission to appeal the decision to the Supreme Court, and so the long running saga is not over yet!
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