16th Mar 2017

Can the wishes set out in a person’s Will be overturned after their death?

In a long-awaited decision, the Supreme Court has reversed a previous decision that a woman, cut out of her late mother’s Will in favour of the three animal charities, should receive nearly a third of the £486,000 estate. 

A case of ‘vital principle’

The case of Illot v Blue Cross and others is the culmination of a long running legal battle between Heather Ilott and the three charities her estranged mother opted to leave her estate to – the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals.

Mrs Illot had been left nothing by her mother when she had passed away in 2004 – a wish that she challenged and £50,000 was awarded to her. This award was then tripled when Mrs Illot appealed the level of the award. It is this decision which the three charities further appealed to the highest Court and succeeded in reversing, upholding what their solicitor has called a ‘vital principle’.

The ruling may be a victory of sorts for the charities involved, but what does the case really mean for an individual’s freedom to leave their estate to whoever they want?  Has it really changed the long standing features of established law at all?

A question of inheritance

This case was decided under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”). 

This area of law is by its very nature complex and there is no one size fits all answer. In coming to a decision, a Court is required by the Inheritance Act to apply a two-stage process. The first question to ask is; has the deceased failed to make reasonable financial provision? If the answer to this is yes then the next question is how much inheritance should they receive. The Court has to consider many factors, to determine how much to award based on the maintenance needs of the adult child.  

Should, like Mrs Heather Ilott, be disappointed with the inheritance they do (or do not) receive; they can apply to the Court to make an Order for an award payable from the deceased’s estate. Only a limited class of person can make such an application such as a child of the deceased, and a claim cannot be made by a child of the deceased solely on the basis the amount of inheritance they have received is unfair.

Contesting a case in court

It is usual for cases of this nature to settle before a fully contested hearing, with the parties agreeing to mediate to find a resolution. The Illot case however found its way to the highest Court in England and Wales – largely the result of the charities bringing an appeal on principle because of the possible impact of the previous decision to award a third of the estate to Mrs Illot.  

In the case at hand, it appears that well established case law has been generally followed by the Supreme Court and the key points to highlight are:

  • A person has the complete freedom to leave their estate on death to whoever they please, also known as “testamentary freedom”, or to leave it to the laws of intestacy (when a person dies without a Will). In many other countries, the concept that a person can leave their estate to whoever they wish on death is unknown. There are rules which stipulate who the estate should go to with a general view that passing down the blood line is favoured.  
  • The purpose of the Inheritance Act is not to reward an applicant on the basis a deceased person acted unreasonably by the amount of inheritance they have left but to allow the law to intervene in limited circumstances.  
  • The Court of Appeal erred when calculating the amount of inheritance Mrs Illot should be awarded.
  • It was acknowledged that it was reasonable for Mrs Illot to receive some support but with greater weight being placed on the concept of testamentary freedom, the original and lower award was reasonable.
  • The judgment acknowledges the state of the current law under the Inheritance Act is unsatisfactory in assisting the Court with balancing conflicting opinions on when a direct descendant should or should not be able to make a claim on an estate.

As the decision a judge could make can wildly differ depending on the facts, it is always advisable to seek professional advice on your own circumstances. Highlighting this point was so eloquently put by Lord Hughes in this case it needs no adaptation and went as follows:

The present case concerns one kind of claimant, namely an adult child who has lived quite independently of her parent, for many years, but who is in strained financial circumstances. That is only one type of case which may raise difficult individual questions under the 1975 Act, which have to resolve on a case-by-case basis. Applications by spouses may do so, whether living with the deceased at the time of death or separated or divorced. Some cases involve difficult balancing of competing claims by several persons upon limited estates. Yet others involve assessing the circumstances in which the deceased was supporting a claimant in some way up to the time of his death; those circumstances may give rise to a claim that future maintenance is reasonably required, or demonstrate that support was given in circumstances in which there is no obligation to continue after death.”

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