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Friday
Mar172017

Ilott v Mitson – Testamentary freedom back from the grave?

On 15th March 2017 the Supreme Court handed down a landmark Judgment in the well documented case of Ilott v The Blue Cross and Others (known as Ilott v Mitson).  This is the first case in which the Supreme Court has been tasked with considering the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).  The 1975 Act allows certain categories of applicants, such as a surviving spouse or adult child, to challenge a Will on the basis that it fails to make reasonable financial provision.

Ilott concerned a claim by an independent adult daughter who had not been left anything in her Mother’s Will.  The Mother left her Estate entirely to three charities.  Her Estate was worth £486,000.

Astonishingly this case was first heard around 10 years ago.  The Supreme Court’s Judgment has been much anticipated in the hope of clarifying the law governing the circumstances when adult children may be able to successfully challenge a Will of their parents.

It is likely that the dust will need to settle further following this Judgment, however, a number of points at first glance appear to be of great interest in this fascinating area of the law.

Claims for applicants, other than surviving spouses or civil partners, are limited to “maintenance”.  The Supreme Court has attempted to further clarify the meaning of “maintenance” and said: “The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have.  It must import provision to meet the everyday expenses of living.”

Testamentary freedom, which is the ability for you to decide who you leave your Estate to on your death, is back (sort of).  The Supreme Court underlined the significance of a Will maker’s (Testator) wishes in deciding whether a Will should be varied with the result that beneficiaries lose out or see their “entitlement” reduced or redirected completely.

In relation to claims by adult children, the Supreme Court said that they must establish:

  • a need to be maintained (nothing new here);
  • the relevant relationship to qualify the claimant; and
  • that the testator had a moral obligation to look after the claimant (the resurrection of the, so called, “moral claim” requirement).

However, the Supreme Court said that long estrangements could be an example of where needs are not always enough to justify a claim under the Act.

What does this all mean?

It initially appears that claims by adult children are likely to be more difficult to succeed and the wishes of the Testator may now finally be given more weight in light of this decision.

If you have any questions regarding the contesting of wills, trusts or probate matters please contact Ben Fox (benjaminfox@greene-greene.com ~ 01284 717442).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com

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