Is divorce reform around the corner? We take a look at this question in our latest blog and in the light of the recent Owens vs Owens case where the husband was represented by Hughes Paddison.
Where there's a Will, there's an argument!
The decision by the Court of Appeal on 27 July 2015 in the case of Ilott v Miston, a dispute which started over 8 years ago, has upheld the original County Court decision. The decision appears to make it easier for adult children to make a claim against their parent’s Will if they feel that they have not been left with reasonable financial provision. This goes against the fundamental concept that through your Will you can leave your estate to whoever you wish, a factor which makes the law in England and Wales different to its European counterparts.
The case concerned a mother, Melita Jackson, who prepared her Will in 2002 and died in 2004. In her Will she chose to exclude her estranged daughter Heather Ilott and leave her entire net estate, valued at just under £500,000 to the RSPB, RSPCA and the Blue Cross. She also wrote a side letter explaining her decision to her executors and asked her executors to defend any claim her daughter may bring. Heather had been estranged from her mother for around 26 years following her decision to elope with her boyfriend at the age of 16.
Heather claimed that she had not received reasonable financial provision in accordance with section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975 (“the Act”) even though she had not been financially dependent on her Mother since the estrangement. What constitutes reasonable financial provision has been something the Courts have had to consider for many years as there is no exact amount specified. The County Court originally awarded Heather £50,000 in 2007. Heather appealed the amount, hoping to increase the award. The charities appealed the decision to award her anything as previously, claims under the Act were not normally successful when brought by adult children who were not financially dependent upon their parents particularly when there were no “special circumstances” in play (e.g. a disability) or strong moral claims.
The High Court dismissed the appeal by Heather in March 2014 ruling that the previous High Court decision was reasonable. However, Lady Justice Arden sitting in the Court of Appeal ruled that Mrs Jackson had been “unreasonable, capricious and harsh” and had “unreasonably excluded” her daughter from her Will and as such she should receive a larger proportion of the estate. Heather’s entitlement was increased to a total of £163,000, nearly 1/3 of the estate; the cost to acquire her housing association home together with £20,000 nest egg.
Whilst it has long been the case that a claim can be made against a Will under the Act (it is not possible to prohibit claims!), it appears that if a parent wishes to disinherit an adult child who has not been financially dependent on them, they must demonstrate a tangible connection to those whom they have decided to include in preference to their children. Mrs Jackson did not appear to have any connection with the three charities and this was a factor which influenced the Court’s decision. It is also, perhaps, relevant that it was Mrs Jackson who had cut her daughter off, rather than her daughter cutting herself off (though admittedly this was not specifically referred to by Lady Justice Arden).
The case goes to show the risks involved in litigation which here has lasted the best part of a decade and will have cost by now at least a six-figure sum.
The three charities have expressed their “surprise and disappointment” about the decision. This may therefore not be the last time we hear about the case if the charities do decide to make a further appeal to the Supreme Court.
If you would like more information please contact Gareth Parry, Head of the Private Client team on 01242 574244 or firstname.lastname@example.org.