Child challenges Will Ilott v Mitson 2011

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Child challenges Will Ilott v Mitson 2011

Postby gardenlaw » Tue Apr 05, 2011 9:23 am

Does a parent ever have testamentary freedom? See what you think

This is a link to a letter written by the testatrix to executors making it very clear why she has left her daughter nothing. It failed.
http://www.bluecross.org.uk/files/39467 ... Wishes.pdf

"The Court of Appeal made a landmark ruling on 31 March 2011 in the case of Ilott v Mitson and others [2011] EWCA Civ 346 and this is already causing concern for both contentious and non-contentious practitioners alike. The basic facts are that the deceased chose to exclude her daughter (Heather Ilott) from her Will following a long history of quarrels. In addition, Heather had moved out of her mother's home aged 17 and had only seen the deceased a handful of times in the many years that followed. The deceased was well advised and left a detailed letter of wishes which stated that: (i) her executors should defend any claim brought against the estate by Heather (ii) she had hardly seen Heather over the years (iii) Heather was not financially reliant on her and (iv) she had told Heather that she would not be inheriting anything from her estate in the fullness of time. The letter can be viewed here http://www.bluecross.org.uk/files/39467 ... Wishes.pdf

Despite these sensible steps taken to explain the exclusion of her daughter, the District Judge at first instance allowed Heather's claim under the Inheritance (Provision for Family and Dependants) Act 1975 and awarded her £50,000 apparently on the sole ground that Heather had five children and was living on benefits. Heather later appealed the decision for more money and the case was heard in the High Court where the charities cross-appealed claiming that the DJ had erred in law and had not properly balanced the criteria for provision set out in the 1975 Act. The charities' cross-appeal succeeds and Heather's claim was dismissed leaving her without provision. Heather takes her case to the Court of Appeal and succeeds; her appeal is to be heard in the High Court by another Judge (sometime later this year).

One can only wonder what more the deceased could have done to protect her testamentary freedom"
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Re: Child challenges Will Ilott v Mitson 2011

Postby gardenlaw » Wed Apr 06, 2011 9:08 am

These are the thoughts of one solicitor

"We are asked what more the testator could have done.

How about: (a) cut them down (ie make some gift to the child), not out (which would also have helped in that harsh marginal capacity case of Sharpe v Adams); (b) prefer a beneficiary you know and like (not charities you have nothing to do with); (c) express positive reasons for choosing the favoured beneficiaries in your "reasons letter" (or they'll seem to have been included out of spite alone, which will be a curse, not a blessing, though most clients say "Won't bother me, I'll be dead"); (d) use a discretionary trust will so that "sensible" trustees can respond by dripping out cash to any disgruntled beneficiary and so avoid litigation and fees and bad publicity for the hapless charities.

Lawyers also need to warn clients not to acquire a domicile overseas (like some of the irate people who rant at Daily Mail Online) or they might find they have opted in to continental forced heirship rules.

I wonder if charities might one day say that will-writers owe them a duty of care under some extension of White v Jones to protect them from unwanted litigation and adverse publicity where named by testators who are in effect just using them?

This estate was 486K of which the daughter was awarded a mere 10% by the DJ, 0% by the HC judge, and then the CA remitted quantum to a different HC judge to decide (with a strong warning to settle or face huge costs).

We shouldn't be surprised by this sort of case. This gloss on testamentary freedom has been with us since 1938, so do we really have to change the advice we have been giving all these years?"
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Re: Child challenges Will Ilott v Mitson 2011

Postby gardenlaw » Wed Apr 06, 2011 2:11 pm

Another view

"There is, surely, nothing remarkable about the decision of the District
Judge, or the Court of Appeal, in Ilott v Mitson.

The Inheritance (Provision for Family and Dependants) Act, 1975,
interferes with testamentary freedom. It give certain categories of
person the right to apply for provision out of the estate of a person
who has died, on the ground that the dispositions of the estate do not
make reasonable financial provision for them.

The Act directs the court, in deciding whether reasonable provision has
not been made, and if so what provision to order itself, to have regard
to certain specified facts and matters, commonly called "guidelines".
These are: -

(a) the financial resources and financial needs which the applicant has
or
is likely to have in the foreseeable future;
(b) the financial resources and financial needs which any other
applicant for an order under section 2 of this Act has or is likely to
have in the foreseeable
future;
(c) the financial resources and financial needs which any beneficiary
of the estate of the deceased has or is likely to have in the
foreseeable future;
(d) any obligations and responsibilities which the deceased had towards
any applicant for an order under the said section 2 or towards any
beneficiary of the
estate of the deceased;
(e) the size and nature of the net estate of the deceased;
(f) any physical or mental disability of any applicant for an order
under the said section 2 or any beneficiary of the estate of the
deceased;
(g) any other matter, including the conduct of the applicant or any
other person, which in the circumstances of the case the court may
consider relevant"

Guideline (a) obviously helped the daughter. Guidelines (d) and (g)
obviously hindered her. The District Judge considered the guidelines,
and made a value judgment that reasonable provision had not been made.
The Court of Appeal held that his judgment was not wrong in principle.

In my view, a different decison would have wrongly privileged
guidelines (d) and (g) over guideline (a). In a case where guidelines
(c), (e) and (f) had been more relevant, it might have wrongly
privileged guidelines (d) and (g) over them, as well.

If Parliament had intended some guidelines to have more weight than
others, it would have said so.

It is also relevant that Parliament deliberately extended the right to
apply to adult children without restriction, when it replaced the
Inheritance (Family Provision) Act, 1938, with the 1975 Act"
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