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

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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 

In our last blog we discussed how, 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. In 1980, the courts appeared to erect their own additional hurdle (which is not supposed to happen – statute is supreme, the courts merely interpret them), following the decision by Oliver J in Re Coventry 1980 Ch 461. This is recited by Lord Hughes in Ilott: 

“There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made” (paragraph 19) 

Lord Hughes, tries to explain this at paragraph 20 as follows: 

“He meant no more, but no less, than that in the case of a claimant son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim” (paragraph 20). 

Unhelpfully this does not appear to provide an explanation of what exactly is meant by “moral claim”, in particular, he doesn’t provide an example. We have done our own research and come up with the following (https://global.oup.com/us/companion.websites/9780195332957/student/chapter1/summary/): 

“Moral claims make assertions about persons and their characters, good or bad, or they make assertions about right or wrong ways to act. Moral claims are normative—and any moral claim will either be a moral value claim or a moral prescriptive claim” 

Whilst, as mentioned in our previous blog on this topic, the courts should discount whether the deceased acted reasonably (or unreasonably) when making the Will, in our view the deceased’s poor behaviour to the adult Claimant applicant could provide the moral basis of a claim. Lord Hughes appears to confirm this as a possibility: 

“Nevertheless, the reasonableness of the deceased’s decisions are undoubtedly capable of being a factor for consideration within section 3(1)(g), and sometimes section 3(1)(d)” (paragraph 17). 

Section 3(1)(g) deals with “conduct” by “any…person” so plainly this must be right. What might also be a factor in providing a “moral” basis to the claim, are promises by the deceased, falling within his/her “obligations and responsibilities” under section 3(1)(d), which is also mentioned by Lord Hughes above. 

The imprecision and lack of detail in relation to this critical element of adult children claims under the ’75 Inheritance Act, which the Supreme Court, attempted to resolve (but didn’t!) clearly makes this particularly risky and for each side in the dispute. This has advantages and disadvantages, but also means that resolving such a claim before a trial should be an imperative. 

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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