Inheritance Act claims by “adult children” – a game of chance?

I described in a previous article the difficulties faced by adult children who bring a claim for financial provision from their deceased mother or father’s estate. Historically a court would be reluctant to make an award. It would judge that adult children who were capable of earning their own living were unlikely to be sufficiently deserving to warrant further payment from their parent’s estate. Conversely, if they were not so capable and “special reasons” existed to explain their financial needs (not related to their own profligacy or lack of effort), they might succeed. Subsequent cases sought to water this down somewhat as of course there is no reference to “special reasons” in the Inheritance Act.

In Ilott v Mitson (2011 EWCA civ 246) the court went further and completely restated the balancing exercise required by section 3 of the Inheritance Act. Section 3 is in fact somewhat clear. A number of factors must be considered by the court to determine firstly whether the Claimant is deserving of financial provision and secondly, the extent.

Whilst it appears to be suggested by at least one of the lawyers involved in this decision (refer to the article by James Aspden in the 149th edition of the ACTAPS newsletter) that this makes outcomes in these cases difficult to predict, I would beg to differ. Financial need for example is easy to show and prove. Similarly the financial position of those benefitting from the deceased’s estate. Moreover other questions posed by section 3 are similarly uncontentious. For instance health,although despite difficult on going symptoms in a recent case which were well documented in his medical records, one of my client’s medical difficulties were certainly not accepted!

Basically the court will judge these factors weighing those matters that are for and against.

I am reasonably clear over the type of Claimant I would be prepared to accept, on for instance a no win no fee arrangement in an Inheritance Act claim. Further, the proof of the pudding is of course in the eating!

However, I confess that Heather Ilott would not have been a client I would have taken on and expected to win. She lacked money but then she had chosen a course of having children reliant on state benefits in support. I don’t recall any major health problems either – in short she was a very unattractive candidate.

I cannot though disagree with their Lordships decision in this matter. They could not question the discretion of the learned District Judge who decided the case at first instance. They could only question the factors he took into consideration when exercising it and given those referred to the section 3 factors I mention above, his decision could not be impeached.

Rather (and this is where I agree with Mr Aspden) a game of chance was not created by this decision but did arise from the fact that this matter went to a trial (and appeals beyond). Taking a case to a full trial is a risk and any litigation lawyer will apply a percentage of at least 10% (if not higher) to even the best of claims.

Clearly one must be cautious, very very cautious about taking even the best of claims to a trial. Mediation or negotiation from the position of strength will often yield a reasonable result but moreover CERTAINTY and I am afraid that certainty will have its price.