But I WANT to leave all my assets to the Dogs’ Home!

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If you are an animal lover like me you would have been outraged when you heard about the case of Illot v Mitson. This was the case where the mother, Mrs Jackson, left her estate of £486,000 to three charities; The Blue Cross, the RSPB and the RSPCA.Her daughter, Heather Illott, took the matter to court arguing that she had not received “reasonable financial provision”.This was despite being estranged from her mother for some 26 years.My first thought was why can’t she leave it to the animal charities if she wants to??When I stopped ranting about that, it dawned on me how significant a case this could be in terms of a person’s testamentary freedom i.e. the long standing rule of law that a person is free to leave their assets to whomever they wish.If the court disregarded the Will, where does that leave… well, basically everyone with a Will!

As it happens the court did award Miss Illott part of her mother’s estate, but it was limited.After some 10 years the matter ended up with the Supreme Court last month who reinstated the original judgment to award Miss Illott £50,000.This overturned the Court of Appeal’s ruling which awarded her £164,000.So a victory of sorts for the animal charities, but only a muted victory for the majority of the general public who once believed the wishes in their Wills would be carried out.

So, why did Miss Illott receive anything at all?She was an adult child who had not had much to do with her mother for a long period of time.She clearly was not relying on or expecting to receive anything from her mother, as she testified herself.So what prompted the court to award even £50,000, which to most people is a large chunk of change?

The relevant statute is the Inheritance (Provision for Family & Dependants) Act 1975 (“the Act”).This interesting piece of law is what caused all of the ruckus.It allows certain classes of parties to apply to the court for provision out of someone’s estate when they have not been left anything, or have not been left enough.The parties eligible to apply include the spouse or civil partner of the deceased and a child of the deceased.As we can see from the case of Illott v Mitson, an independent, adult, child can apply.

What does the court consider?It considers whether “reasonable provision” has been made.This is where the problem lies because the court takes into account what is reasonable “in all the circumstances”.The court is given a wide discretion when it comes to what it takes into account.The only limitation with regard to children is that the provision has to be for their maintenance only.

In this particular case, the original judge (whose award was upheld by the Supreme Court) decided that because Ms Illott was in financial difficulties she should receive something.He limited his award due to the fact that she had managed her life over many years without any expectancy that she would receive anything.He considered the effect the award would have on her benefits and concluded that the amount would be sufficient to replace essential items such as white goods, basic carpeting, floor covering and curtains, and the replacement of worn or broken beds.This, he concluded, was maintenance and not an indulgence.By purchasing these items, the impact on her family’s benefits would be minimalised, but they would help her household function properly and this “fitted sensibly within the concept of maintenance”

So what do we learn from this case?Unfortunately, not a great deal.The Act has always allowed children to make a claim regardless of their age, and has always allowed the court to take into account a number of factors.However, this case has highlighted what the court’s approach might be should it be faced with similar circumstances.As to whether there will be a change in the law because of the uncertainties involved, remains to be seen.

For advice on writing a Will, please contact Charles Fraser in our Private Client team.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.