Ilott v The Blue Cross and Others, previously known as Ilott v Mitson

This is the case which concerns a person’s right to make a Will and to choose to leave gifts to charities instead of making provision for children who are estranged and with whom there is absolutely no contact, who are not expecting an inheritance and who have lived an independent adult life for over 30 years.

In this case, Mrs Melita Jackson was widowed in 1960 when she was pregnant with her only child who left home at the age of 17 to continue a relationship with a man whom she married. They had 5 children and were reliant on State Benefits. The mother and daughter were not reconciled and Mrs Jackson made her Will in 2002 leaving the estate to 3 animal charities and wrote a letter explaining why no provision had been made for her daughter, Mrs Ilott.

Mrs Jackson died in 2004 leaving an estate of around £486,000. Mrs Ilott made a claim for reasonable financial provision for her maintenance under the Inheritance (Provision for Family and Dependants) Act 1975. Mrs Ilott was successful before the District Judge who awarded her £50,000; she appealed for an increased amount and there were a number of appeals and cross appeals resulting in an increased award from the Court of Appeal. The award was for £163,000 to enable her to buy her house under the Right to Buy legislation and a lump sum of £20,000.

The charities appealed to the Supreme Court which heard the case in December 2016, over 12 years after the date of death.

The charities were successful in their appeal and the Supreme Court reinstated the initial award of £50,000.

The law itself is complex and there are many factors which need to be taken into consideration and the law does not clarify the weight to be given to the competing factors. Appeals can only succeed if there has been an error of law, it is insufficient to disagree with the Judge provided that the correct law has been applied and discretion has been exercised in a proper manner.

I was concerned about the way in which the position of the charities as beneficiaries had been addressed on appeal. The Court of Appeal had regarded the charities as having no need in comparison to the need of the daughter and that the legacies were a windfall. I respectfully disagree with this finding. I have done a lot of work with charities over many years to raise awareness of charitable giving through legacies to fund their vital work. Public funding is under great strain and there is increasing emphasis on the services and work (including medical research) charities provide.

In the Supreme Court and in his leading Judgment, Lord Hughes held;

“…charities depend heavily on bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes. More fundamentally, these charities were the chosen beneficiaries of the deceased. They did not have to justify a claim on the basis of need under the 1975 Act, as Mrs Ilott necessarily had to do….”

Lord Hughes continued that the finding of the Court of Appeal that the charities were not prejudiced by the increased award to Mrs Ilott was “erroneous” because their benefit would be reduced by the amount of the award.

In conclusion, this case supports the basic legal right of the individual to make his or her Will to choose the beneficiaries of the estate. This is called testamentary freedom. However, the law is rarely black and white and Wills can be challenged on the grounds that there is no reasonable financial provision under the 1975 Act and each case will be dealt with in respect of its own facts.  In the present case, Mrs Jackson wished to disinherit her daughter completely but the District Judge awarded approximately 10% of the estate.

I think that disinheriting a child or leaving unequal shares to your children are steps which have immense implications and consequences which reach forward into the future after your death. Such steps should only be taken after very careful consideration of the consequences of your actions. Always remember that a Will is made in the present but it only comes into effect after you have died, when your family’s circumstances may have changed since making the Will. At that stage it is too late to explain or change anything.

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