Chess pieces in front of a wall that reads "Last will and testament"

Inheritance Act claims by adult children

The Supreme Court has delivered its judgment in the case of Ilott v The Blue Cross & Others, a case brought under the Inheritance (Provision for Family and Dependants) Act 1975 which considered whether it was right for Heather Ilott to be have been cut out of her mother’s Will. This is the first time the Supreme Court has considered an Inheritance Act claim.

The Case

The facts of the case are as follows:

  • Heather Ilott left home at 17 to live with her boyfriend (whom she later married). Her mother did not approve of Heather’s choice of boyfriend and this caused them to fall out.
  • Heather and her mother never reconciled and they remained estranged for a period of some 26 years until the mother’s death.
  • When Heather’s mother made her Will she left the whole of her estate to three charities. It was later established that she had no particular affinity with any of these charitable organisations. Heather was left nothing in the Will and her mother wrote a strongly-worded letter of wishes clarifying her reasons for this.
  • Following her mother’s death, Heather made a claim for financial provision from her mother’s estate.

Heather’s claim has been in the court system for a very long time. The District Judge who first heard her claim awarded her £50,000 from a £486,000 estate; both Heather and the charities appealed the decision. The High Court decided Heather should not have received anything; Heather appealed again and the Court of Appeal decided it should go back to the High Court for a retrial which resulted in the initial £50,000 award being restored. Heather appealed yet again to the Court of Appeal who awarded her £143,000 for a house and the option of a further £20,000. The charities appealed this decision which led to the Supreme Court’s consideration of the matter. They decided that the District Judge had reached the correct decision all those years ago and restored the £50,000 award.

I thought I could leave my property to whoever I wanted to in my Will?

The Supreme Court was quick to emphasise that the concept of testamentary freedom is important in English Law. It pointed out that claims by adult children are limited to “maintenance”, a legislative choice which demonstrates the significance of testamentary freedom in English Law[1][2]. This appears to support the Law Commission’s previous commentary on the matter which stated that restricting a child’s claim to “maintenance” imposes an “important practical limit on an adult’s claim, because most adults will be supporting themselves. There is no obligation to leave property to a child in one’s Will, and no principle that a child must inherit solely because of a blood relationship. Testamentary freedom is restricted, so far as one’s children are concerned, only where necessary to meet need or some unusual circumstance.”[3]

Therefore, it still seems to be the case that it should be hard for an adult child to succeed in an Inheritance Act claim and they must demonstrate real need or show some other unusual circumstance in order to succeed.

So what is maintenance?

There is no official test for “maintenance”. The Supreme Court said that it cannot extend to providing a claimant with everything he or she wants but relates to providing the means to meet everyday living expenses[4]. Conversely, it is not limited to subsistence level[5].

It seems clear that the standard of living which needs to be met is that which is appropriate to the claimant’s income needs.[6] A claimant cannot expect to have his or her standard of living dramatically improved.

The provision of housing may sometimes be appropriate maintenance but the Supreme Court has advised that housing should usually be provided by giving someone the right to live somewhere for life rather than by giving them a lump sum of money outright.[7]

Do I have to leave my child(ren) something in my Will?

No. The two main factors in this case were:

  • the estrangement between Heather and her mother; and
  • Heather’s reduced financial circumstances.[8]

The two factors had to be balanced and the Supreme Court confirmed that it would have been perfectly in order for a judge not to have awarded anything to Heather. It is even possible to read into the judgment regret on the Supreme Court’s part that this option was not open to it on appeal; the Court confirmed a couple of times that this option would have been in order and specifically pointed out that it was not an option open to it.

The Supreme Court pointed out the unsatisfactory nature of the law in this area which means that there is a wide range of decisions that can be reached in any particular case. The judge hearing the case has to exercise his discretion and make a “value judgment” based on the facts of the case. Inevitably, different judges will make different decisions but none of these decisions will be wrong so long as the law has been considered and applied correctly by the judge.

How can I ensure that my wishes are followed?

There can be no guarantee, as in this case, that your wishes will be followed. However, the Supreme Court said that in many cases the relationship between the claimant and the deceased will be of considerable importance.[9] It strongly criticised the Court of Appeal for not giving the estrangement enough weight. When making the original award of £50,000 (as upheld), the District Judge made it clear that he had taken the estrangement as described in the letter of wishes into account and limited the award accordingly. It is therefore important to write a letter of wishes setting out the reasoning behind your Will.

It may also be that you have other reasons for leaving your estate in a certain way. As a firm specialising in agricultural matters we are all too aware that passing on the family farm can pose difficulties when trying to keep the farm/business intact. Or it may be that you have given one child more financial support than others during your lifetime and you wish to address this in your Will. A letter of wishes documenting these reasons is valuable evidence if your Will is challenged. It is also useful information that can be given out following your death with a view to preventing a claim in the first place.

Conclusion

Practitioners were hoping the Supreme Court would provide them with firm guidance on what is a very difficult area of law. This has not happened but the Supreme Court has pointed out that the law in this area is unsatisfactory. It remains to be seen whether legislation will now be brought in or updated to address this issue.

If you wish to discuss any aspect of an Inheritance Act claim or other challenge to a will please contact Sarah O’Grady or another member of Clarke Willmott’s will disputes team. Alternatively if you would like advice about updating your own Will please contact our Private Capital team.

[1] [2017] UKSC 17

[2] Ibid. at paragraph 13

[3] The Law Commission report “Intestacy and Family Provision Claims on Death” (LAW COM No 331)

[4] Ilott v The Blue Cross paragraph 14

[5] Ibid. paragraph 15

[6] Ibid. paragraph 14

[7] Ibid. paragraph 15

[8] Ibid. paragraph 35

[9] Ibid. paragraph 35