The Law Lab: Diary

Just how binding is your Last Will and Testament? Lessons from Ilott v Mitson

The number of disputed Wills is at an all time record high and shows no signs of abating.
Have we all become more greedy or is something else driving this change? It’s fair to say that on the whole with property prices having soared to previously unimaginable levels – more and more people have an estate to leave. Meaning there is more to wrangle over.

Combined with the other big shift – a rise in blended families, the potential for conflict over competing claims on a deceased’s estate from spouses and children is ever more likely. Divorce has been on the rise and the nuclear family is no longer the homogenous unit it once was, so defining a typical structure of a family unit is now a far more complicated exercise.

Its against this backdrop that we see a surge across Britain of inheritance disputes. In this week’s article we look at the impact of recent rulings and what to do to ensure your wishes are carried out to the letter of your Will.

Ilott v Mitson
Among the most highest profile cases of the last decade has been Ilott v Mitson, a ten year dispute brought by a daughter to reverse her mother’s wishes that she receive nothing from her estate. What followed was a series of appeals and counter appeals, until the case eventually reached the Supreme Court which ruled to reduce the financial provision awarded to the daughter through the earlier Court of Appeal process.

This case not only received its fair share of media coverage but for many it simply shone a bright light on the irrevocable fact that Wills can be contested and ultimately overruled.

The reality is this has long been the case. The Inheritance (Provision for Family and Dependants) Act of 1975, a 40 year-old statute, allows a person to make a claim against an estate if they believe they have not been sufficiently provided for, and was intended to make financial provision for those who had:

  • not inherited as a result of intestacy or in lay terms, there being no Will;
  • been left out of a Will;
  • or not been left as much as they need.

It was not however the intention of Parliament to create an instrument through which Claimants can argue for a legacy they believe they ought to have received but did not.

What Ilott v Mitson showed beneficiaries was that if a case can be brought it can also be won, albeit on this occasion it took 10 long years.

And while in this instance the daughter did manage to alter the course of her mother’s final wishes, the Supreme Court’s lengthy judgement emphasised that for adult children awards should be limited to ‘maintenance’ and no more than this.

What distinguishes this case?
Obviously the length of time it took to conclude is one distinguishing factor, as well as the overruling of previous judicial decisions.
Not unlike other cases, there were a number of factors that weighed on all of the decisions at every level:

  • What was at stake was a fairly significant sum;
  • The applicant was not well off
  • The beneficiaries of the Will (animal charities) had a limited connection to the deceased

The Supreme Court’s ruling was hotly anticipated in 2017 and many thought it was a landmark ruling. On the whole, most commentators regarded the decision as an attempt by the court to try and reign in some of the more excessive claims. And what it did certainly clarify was the operation of the the 1975 Inheritance Act.

To read details of the Supreme Court’s decision click here.

What does this case mean for will makers and beneficiaries?

It was not the first time a provision had been awarded in a case of deliberate disinheritance. However it was the first time a case had reached the Supreme Court. In 1999, in Espinosa v Bourke, the daughter made an application based in part on a promise made by the father to his wife, who had predeceased him, that he would leave the wife’s portfolio of shares to the applicant. Again, the judge ruled in favour of the daughter’s claim awarding her a lump sum in direct contradiction to the deceased’s wishes.

It does not always follow that the courts will overturn a provision in a Will that disinherits a particular descendant but they will look at the financial needs and resources of the person bringing the claim, but need alone does not give an automatic right to financial provision. It’s fair to say that surviving spouses will nearly always have a valid claim if they are disinherited or not left a reasonable provision.

What actions can you take to protect your wishes?
Clearly this case like all others highlights the importance of making a Will but it does not, as many have suggested infringe on our freedom to leave our estates to whoever we choose.

The key is to think through with your advisors all of the possible outcomes of any decision to disinherit and to carefully document your reasons for choosing the beneficiaries you have.

If you or someone you know are thinking of disinheriting a child make your reasoning clear and also let it be known to the person(s) involved. This will ultimately give you the best chance of having your wishes be carried out, should the will and the decisions embodied in it need to be defended in the future.

If you’re concerned that your Will is not as binding as it needs to be, or you’ve not yet written your Will and would like to speak to one of our Wills, Estate and Succession Planning lawyers, please contact us by calling +44 (0) 20 3841 7470.


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