15th March 2017
Associate solicitor Emily Prout comments:
The case was originally brought in 2007 by the daughter of Mrs Illot. When she died in 2004, Mrs Illot left the entirety of her estate (worth approximately £450,000) to various charities, and nothing to her daughter. Mrs Illot was entitled to do this, and left a note explaining why she did not wish for her daughter to benefit from her estate.
It is a well-established principle of our legal system that an individual has freedom of testamentary wishes – in other words, people can leave the estate and assets upon death to whomever they wish - as long as those wishes are recorded in a will. There is no obligation for people to leave their estates to members of their family (unlike, for example, in France). However, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of persons (such as spouses, children or those maintained by the deceased) to bring a claim for ‘reasonable financial provision’ if they have been left nothing, or inadequate provision, in a will.
Mrs Illot’s daughter brought such a claim, and some 10 years after that claim was initiated (and 13 years after Mrs Illot passed away) we have a binding and final decision. After so many years, and undoubtedly significant legal costs for all parties, the daughter has been awarded £50,000 from the estate with the balance going, as had been intended by the deceased, to her nominated charities. This is a significant departure from an earlier decision of the Court of Appeal where the individual was awarded substantially more of the estate (£143,000).
The decision of the Supreme Court emphasises the value of the deceased’s wishes in assessing a claim of this nature, with the judge commenting that “more fundamentally, these charities were the chosen beneficiaries of the deceased”. In this respect, it should provide some comfort to charities, many of who rely heavily on testamentary gifts as a source of their income, and individuals who choose to leave substantial parts of their estates for charitable purposes. However, the Supreme Court concluded that in assessing a claim by an adult child, it was faced with an unenviable task, as all relevant factors need to be considered, including the needs of the individual, and each case must be decided on its own facts. It remains to be seen whether this area of law will undergo a review in the future. The Supreme Court hinted that now may be an appropriate time to do so, and referred to the “unsatisfactory state of the present law” in respect of adult child claims.
Whilst in this instance the deceased had a professionally-drafted will, the case also highlights that where an individual sets out their wishes about their estate in their will in a very strict or prescriptive way (the result of which is to exclude family members absolutely from their will) there is often no choice but for the disappointed beneficiary, or excluded family members, to engage in costly, lengthy and potentially stressful litigation.
It is highly recommended that people consider the use of more flexible vehicles in their wills, such as trusts, which would enable any future claim against the estate to be settled outside the litigation arena. Whilst this would not prevent a claim against their estate, it may make any dispute after death a little easier (and less costly) for executors and beneficiaries to deal with. Additionally, they may be able to avoid (or mitigate) such post-death disputes by giving careful consideration now as to who to leave their estate to, providing detailed notes on their wishes, and wherever possible, addressing any potential issues with their family (and solicitor, if professional advice is being taken) at the time the will is drafted.