The recent Family Division Court of Appeal case of Ilot v Mitson  EWCA Civ 797 has caused a stir in the world of inheritance act
claims. It deals with a claim by Heather Ilot over the estate of her deceased
mother, Melita Jackson. The deceased left the majority of her net estate
(£486,000) to three animal charities (RSPCA, RSPB and the Blue Cross) and made
no provision for Mrs Ilot her only daughter. Mrs Ilot contested the will under
the Inheritance (Provision for Family and Dependants) Act 1975. She was, by this
time, a married mother of five, in dire financial straits and almost completely
reliant on state benefits. She had been estranged from her mother for over 30
years after eloping with a boyfriend at age 17.
At first instance, the judge awarded Mrs Ilot £50,000,
concluding that the deceased did not make reasonable financial provision for her
daughter. Mrs Ilot appealed this decision, on the basis that the award was
inadequate. The decision was subsequently overturned and a finding in favour of
the three charities. Mrs Ilot then appealed again and the Court of Appeal ruled
in her favour but remitted the case to determine the issue of quantum. The
recent judgment confirms that Mrs Ilot has been awarded a third of her mother’s
estate, some £164,000.
The 1975 Inheritance Act allows the courts discretion to
redistribute the deceased’s estate where the will or intestacy rules fail to
make 'reasonable financial provision' for the applicant. Such claims are open
to surviving spouses, former spouses, co-habitees, children (including step
children and children of the family), civil partners or anyone being maintained
by the deceased.
My colleagues in the contentious trust and probate team have
informed me that there are two schools of thought to draw from the outcome in
Ilot v Mitson. One being that this case could be seen to open the floodgates for
similar claims and potentially undermine testamentary freedom. The other being
that this is a very fact-specific case where Mrs Illot had a great financial
need and the other beneficiaries, all animal charities, were seen to have no
human need, a sentiment followed through the case which spurred the court to use
its wide discretion to provide for her as they are empowered to do under the
Act. Mrs Ilot’s reasonable financial needs were met with a sum large enough for
her to buy her council house which would not, in itself disrupt her benefits.
She was also provided with an additional optional sum of £20,000 which she could
request in part or in full to invest to provide her with an additional income,
again which was not large enough to undermine her benefits. Had there been
other (non-charity) beneficiaries, or had Mrs Ilot not been in such a
financially precarious position, the award may have been very
What is the implication of this case in the world of family
law? This draws me back to the question of reasonable financial provision. Just
as Mrs Ilot was able to bring her claim (and win) on the basis of no reasonable
financial provision having been made for her in her mother’s will, a spouse or
former spouse could do like-wise, potentially to greater effect as I shall
explain below. The definition of reasonable financial provision varies from
claim to claim. It is worth noting that inheritance claims brought by surviving
spouses and surviving former spouses and inheritance claims brought by other
categories of claimant are treated differently. If such a claim is being
brought by a spouse of the deceased then reasonable financial provision will
mean such financial provision as would be reasonable for a husband or wife to
receive, whether or not that provision is required for their maintenance.
For all other claimants and former spouses it means such
financial provision as would be reasonable for their maintenance. If the parties
are separated but not yet divorced and decree absolute has not been obtained,
then the higher standard would apply. Additionally, if a party dies within 12
months of decree absolute and at the time of death the surviving party has not
made an application for financial provision under the Matrimonial Causes Act or
has made an application that has not yet been determined, the court has the
discretion to treat the surviving party as if no decree had been made.
When considering an Inheritance Act claim by a spouse or
former spouse and whether the financial provision is reasonable, as well as the
factors that apply to all claimants, the court will look at the factors set out
at section 3 of the Inheritance Act:
age of the applicant;
duration of the
contribution made by the applicant to
the welfare of the family of the deceased, including any contribution made by
looking after the home or caring for the family.
These factors are reminiscent of the section 25 factors in
the Matrimonial Causes Act 1973. In fact, the court will also consider the
provision the applicant might reasonably have expected to receive if on the day
the deceased died, the marriage, instead of being terminated by death, had been
terminated by a decree of divorce, the 'divorce cross check'.
Such claims can be excluded on divorce and routinely, court
orders resolving financial remedy proceedings include specific clauses excluding
former spouses claims under the Inheritance Act. Nuptial agreements also
routinely feature such exclusion clauses and, though not strictly binding, would
certainly be a factor which the court would give weight to.
I believe, however, that there are many separated or divorced
couples who have not had their financial agreements sealed into a binding court
orders. Their claims are still open and many will not have given consideration
to the risk of Inheritance Act claims upon their deaths (or indeed claims under
the Matrimonial Causes Act during their life time). They may consider that they
have moved on with their lives and drafted new wills or letters of wishes, only
for their errant spouses to come back after their death, clamouring for
reasonable financial provision, and staking a claim on their
In an increasingly legally-savy age, where a growing number
of parties are seeking to cash-in on potential windfalls, be it via re-opening
their financial claims post separation or staking a claim on an inheritance, it
is clear that expert legal advice is needed in order to provide adequate
protection and avoid expensive litigation at a later stage.
Such cases highlight the fact that family practitioners must
give appropriate weight to these issues when advising their clients as to the
importance of dismissal of claims, both during their lifetime and against their
estate upon death.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.