Ilott v Mitson – Testamentary freedom back from the grave?

On 15^th 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

Farming Daughter Sues Parents for £1.3million

The High Court in Cardiff recently awarded £1.3 million to Eirian Davies to settle her "proprietary estoppel" claim on her parents' farm.  Proprietary estoppel is a legal claim used to assert rights, often to land but also to other assets, and usually in the absence of proper documentary evidence.

Miss Davies worked for the farming business for little or no payment for many years, on the understanding that the whole enterprise would eventually pass to her.  She has two sisters, but both had moved away to follow other careers.

By 2008, Miss Davies' parents, Tegwyn and Mary Davies, had agreed to hand over almost half of the business to her.  Documents were prepared to implement the agreement but were never signed.  Instead, the parents agreed to prepare Wills leaving Miss Davies the land and buildings, and a share in the company.

Unfortunately a family dispute arose.  In 2009 Mr and Mrs Davies decided to amend their Wills putting the farm into a trust with the rest of their estate split between the three daughters equally.  Family relations continued to deteriorate, leading to Miss Davies' departure from the business in 2012.  She then sued.

In 2013 the High Court upheld Miss Davies’ claim.  Her parents appealed, but the Court of Appeal rejected their appeal, except on one relatively minor point.  The court directed that Miss Davies' recompense could be settled either by granting her a share in the farm or by a cash payment.

The Court of Appeal then invited the parties to negotiate a settlement as to the amount of Miss Davies' interest without further litigation, but this proved impossible.  Miss Davies therefore returned to the Cardiff High Court, which, it is reported, granted her £1.3 million in compensation – around one-third of the business.  The amount was described as sufficient for her to start a new farming business of her own.

Proprietary estoppel is an unusual but potentially very useful basis for making a claim.  It is however a difficult and expensive action to mount. 

Farming families are particular vulnerable to such claims because of the huge increase in land values.  The Davies’ case has so far spent five years going through the court systems and involved thousands of pounds of legal fees.  Unfortunately family disputes do occur.  Properly drafted documents setting out the intentions and wishes of the parties at the outset could well have prevented this.

For further information or advice please contact Wayne Perrin at Greene & Greene on 01284 717454 or email wayneperrin@greene-greene.com.  For more details about Greene & Greene solicitors please visit www.greene-greene.com and follow us on Twitter @greenegreenelaw.

This article was originally published in the East Anglian Daily Times Rural Review Feature on 28 March 2015.

Seminar on Wealth and Frailty - Wednesday 20th November 2013

Greene & Greene Solicitors' 17th annual Autumn seminar season comes to a close on Wednesday 20th November 2013. The seminar, held at the Unitarian Meeting House on Churchgate Street, Bury St Edmunds, will focus on failing capacity and increased vulnerability, guiding families and friends to ensure that inappropriate transactions are not undertaken and that proper transactions are protected from attack at a later date.

In this session Kate Chandler (Contentious Probate and Family lawyer) will outline what happens where insufficient thought is given to validating the instructions of vulnerable clients. She will detail the ways a Will or lifetime gifts can be challenged due to lack of capacity, lack of knowledge and approval, undue influence and the effect of vulnerability and suggestibility. 

Wayne Perrin (Tax and Probate lawyer) will demonstrate how, with a few simple guidelines, the risk of challenges can be minimised. Dealing with these issues from mere vulnerability to lack of capacity and setting out rules to follow to ensure that all documentation holds water in the event of a dispute.

Greene & Greene’s head of private client, Suzanne Alston, said: "Disputes about the validity of wills and trusts, and the distribution of deceased persons’ estates, are increasing. This seminar will be very useful to individuals on their own account and professionals who advise families in other fields involvingg property and finance."

The morning session is already fully booked but some spaces exist in the afternoon slot at 2.15pm on Wednesday 20th November 2013.  The seminar is free but booking is essential.  If you are interested in attending, please contact Debbie Rouse, Practice Administrator, on 01284 762211 or debbierouse@greene-greene.com.  More information can be found on Greene & Greene at www.greene-greene.com and @greenegreenelaw.

Problems with Wills

I was giving a talk the other day to a local Womens’ Institute and was surprised at the number of people who came up to me afterwards to talk about the problems with Wills their family had faced after the death of a relative.  Most had not appreciated that they may have been able to have done something to resolve the problem.

The facts of the recent Court of Appeal case of Hawes v Burgess are not, I suspect, that uncommon.  A widow makes a Will leaving her estate equally between her 3 children.  Two of the children fall out.  One of those then arranges for their mother, who is elderly and in failing health to make a new Will, all but cutting out their brother.  The mother was seen by a solicitor when making the Will, who thought she was entirely “compos mentis”.  However, she was accompanied by her daughter who was the “driving force” behind the new instructions.  Their mother had not fallen out with her son and did not tell him about the changes to the Will.

The Court found that the last Will was invalid so the estate was distributed under the terms of the earlier Will equally between the 3 children.  The daughter, who was instrumental in the instructions for the invalid Will, was ordered to pay the costs.

As a member of ACTAPS – the Association of Contentious Trusts Probate Specialists, for over 14 years I have considerable experience in advising families and individuals in respect of problematic Wills and can often give a preliminary view over the telephone as to whether your problem is worth investigating further.

For further information contact Kate Chandler on 01284 717513 or email k.chandler@greene-greene.com

Wealth Management from beyond the grave

The vast majority of us, whilst not wishing to contemplate our mortality, do want to retain some control over our wealth once we have gone but it is very easy not to grasp the nettle, more so these days with the complexities of second marriages, stepchildren, partners and their children.

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Client receives generous settlement after disputing Will

We have recently secured generous compensation for a client, where the will of their spouse failed to leave them enough. Our client had originally been offered £10,000 to settle his claim, but after instructing Kate Chandler he obtained a settlement of a property free of mortgage plus £164,0000.

Challenging wills is Kate's areas of expertise, please contact Kate if you need any advice.