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CONTESTING A WILL – SNIPPETS FROM ILOTT V MITSON AND WHAT THEY MEAN? (PART 1 OF 2)

Will claim, specialist no win no fee will dispute and will contest Solicitors, discuss elements of the Supreme Court Judgment in Ilott v Mitson and their likely effect in adult child financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975. 

In a previous blog (see https://www.willclaim.com/blog/) we discussed how a claim can be made by an (adult) child for a share of his/her parents estate under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. For further information about the operation of this Act then please go to: 

http://www.legislation.gov.uk/ukpga/1975/63/contents

Historically, claims by adult children were much harder (to win) than claims by minor children, simply because adults are normally expected to be able to stand on their own feet whereas a minor child is expected to be nurtured until adulthood. However (and as pointed out by Lady Hale in Ilott), the Law Commission report which led to the 1975 Act, recommended that any child or child of the family of the deceased should be able to make an application under the Act and further that claims by adult children were not to be limited to claims by adult children who were actually dependent on the deceased when he/she died because: 

“this would rule out a claim against the estate of a parent who had unreasonably refused to support an adult child during his life time where it would be morally appropriate to provide such support. Moreover an adult child, who is fully self-supporting at the time of the parent’s death, may quite suddenly thereafter cease to be” (paragraph 59) 

The foundation for the Court to make an Order under the 1975 Inheritance Act is whether the deceased’s Will (or the rules of intestacy where there is no will) makes “reasonable financial provision” for the applicant: 

http://www.legislation.gov.uk/ukpga/1975/63/section/3

However, as the court in Ilott make clear, whilst the above requires the court to determine whether the financial provision (or lack of it) is reasonable: 

“The Act does not say that the Court may make an order when it judges the deceased acted unreasonably. That too would be an objective judgment, but it would not be the one required by the Act” (paragraph 16). 

Lord Hughes helpfully explains this conundrum in the following paragraph (17), the key extract from which we have set out below: 

“The deceased may have acted reasonably at the time that his will was made, but the circumstances of the claimant may have altered, for example by supervening chronic illness or incapacity, and the deceased may have been unaware of the full circumstances, or unable to make a new will in time. In Re Hancock, deceased (1998) 2 FLR 346 illustrates another 

possibility. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a development value six times its probate assessment, and, that being the case, there was a failure to make reasonable provision for another daughter who was in straitened circumstances. Thus there can be a failure to make reasonable financial provision when the deceased’s conduct cannot be said to be unreasonable. The converse situation is still clearer. The deceased may have acted unreasonably, indeed spitefully, towards a claimant, but it may not follow that his dispositions fail to make reasonable financial provision for that Claimant, especially (but not only) if the latter is one whose potential claim is limited to maintenance. In Re Jennings, for example, the deceased had unreasonably failed, throughout the minority of his son, the Claimant, to discharge his maintenance obligations towards him. Many might say, as indeed the trial Judge did, that this failure imposed an obligation on the deceased belatedly to provide for his son. But by the time of his death many years late the son had made his own successful way in the world and stood in no need of maintenance; his claim accordingly failed, correctly, in the Court of Appeal” 

Perhaps the simple meanings here are that: 

  1. Firstly, the correctness of the deceased’s decisions in his/her Will will not and cannot be judged by the Court with the benefit of hindsight; 
  2. However, whilst ignoring the reasonableness or unreasonableness of the deceased’s decisions at the time they were made, the Court will in fact test the outcome of those decisions (as at the time the claim is made), so where following death the adult child unexpectedly falls onto hard times and/or illness, that may well become a compelling claim; conversely, notwithstanding the appalling behaviour of a parent who fails to support his/her child when a minor, the same adult child who is now rich and with no financial needs, cannot bring a successful claim. 

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat or visit us at www.willclaim.com.

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