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Restoring the balance in favour of testamentary freedom

View profile for Natalie Carolan
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On 15 March 2017, the Supreme Court handed down its judgment in the landmark case of Ilott v The Blue Cross and others [2017] UKSC 17.

The facts were:

Mrs Jackson had one daughter Mrs Ilott. In 1978, when Mrs Ilott was 17, she left home to live with her boyfriend. Mrs Jackson did not approve of Mrs Ilott’s boyfriend. A lifelong estrangement between mother and daughter followed, which lasted 26 years, until Mrs Jackson’s death in 2004 at the age of 70. Three failed attempts at reconciliation occurred during this period.

Mrs Ilott married the man she left home to live with and together, they had five children. Mrs Ilott and her family lived in a rented Housing Association accommodation and were in receipt of state benefits. The family lived entirely independently from Mrs Jackson and were not financially dependent on her.

In as early as 1984, Mrs Jackson made a Will and recorded a letter of wishes which said;

“I heard from her husband’s parents that she had a baby boy. When I heard about this, I visited her in hospital and took flowers and brought up her perambulator and other presents. However, she made herself very unpleasant and wished to have nothing to do with me. Therefore, she receives nothing from me at my death”.

In Mrs Jackson’s last Will of 2002, she left the majority of her estate to a number of charities and made no provision for Mrs Ilott.

Following Mrs Jackson’s death in 2004, Mrs Ilott challenged her mother’s Will under the Inheritance Act 1975. At first instance, the District Judge determined that Mrs Jackson’s Will did not make reasonable financial provision for Mrs Ilott and awarded her £50,000. Mrs Ilott appealed the award. After a lengthy appeals process, the Court of Appeal awarded Mrs Ilott £143,000 to buy the house that she lived in and an option to receive a further £20,000 in one or more instalments.

The charities appealed the Court of Appeal decision. The Supreme Court found that the Court of Appeal had no proper basis for interfering with the judgement made by the District Judge at first instance. The Supreme Court allowed the appeal and reinstated the award of £50,000 made by the District Judge.

The judgment of the Supreme Court provides the following useful guidance:

  • Adult children’s claims for reasonable financial provision are limited to such provision as it would be reasonable for the adult child to receive for maintenance.
  • Maintenance does not extend to everything that would be desirable for the adult child to have, but is not limited to sustenance level. 
  • Although maintenance is generally through the provision of income rather than capital, it may be more appropriate if income is provided by way of lump sum from which income and capital can be drawn over the years.
  • There is no reason why the provision of housing should not be construed as maintenance in some cases. Ordinarily, this will be by creating a life interest in property.
  • The needs of the adult child are not always enough to justify a claim under the Inheritance Act 1975.

The Supreme Court’s judgment will be a welcome relief to those who support testamentary freedom as it highlights the limited circumstances in which a court will interfere with a testator’s wishes. In her closing remarks, Lady Hale criticised the state of the present law which she said gives no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance. Whether Lady Hale’s comments prompt the Law Commission to review the current legislation remains to be seen.

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