The long awaited Supreme Court judgment in Ilott v Blue Cross & others
(2017) finally brings to an end the extremely lengthy proceedings brought by Mrs Ilott under the Inheritance (Provision for Family and Dependants Act) 1975 (the 1975 Act).
These cases will remain very fact-specific, but for charities and other beneficiaries who cannot themselves point to any “need” for the bequest, this case will be helpful in re-calibrating the expectations of adult children who feel hard done by in terms of their parent’s testamentary decisions. It certainly does not open any floodgates to claims by adult children, as had seemed possible at various stages of the litigation.
How did the proceedings come about?
Mrs Ilott started proceedings saying that her mother’s will, which gave nothing to Mrs Ilott, did not provide her with reasonable maintenance. The main beneficiaries to the nearly £500,000 estate were various charities with whom the deceased, Mrs Jackson, did not have any particular links when she was alive. The charities, in defending the proceedings, correctly did not assert that they had any “need” for the money to be taken into account – the question was whether Mrs Ilott could obtain anything, and if so, how much. Nevertheless, Lord Hughes did point out with regard to the charities that “charities depend heavily on testamentary bequests for their work” and noted the importance of the fact that “these charities were the chosen beneficiaries of the deceased” and “did not have to justify a claim on the basis of need … as Mrs Ilott ..had to do”.
It is generally safe to ignore most headlines (and many articles) in mainstream media about the case when excited discussion takes place about whether people should have testamentary freedom. It has always been the case that people in England and Wales have complete testamentary freedom: the 1975 Act, to summarise it very crudely, merely provides a safety net so that people who ought not to be left in the lurch by a testator will not be disadvantaged in this way. What this case was about was the thorny question of when claims by adult children, living independently of their deceased parent, can make a claim if they have been left nothing (or too little) in the will.
The original decision, and appeal after appeal…
In Mrs Ilott’s case, following a decision from the district judge who heard the case at first instance, it was held that the zero provision made in the will was unreasonable, and that a reasonable sum for Mrs Ilott’s maintenance would be £50,000. The charities appealed that decision, which at High Court level was overturned with a finding that zero provision was reasonable. That was appealed to the Court of Appeal, who overturned the High Court decision, and sent it back to the High Court to determine the question of the correct amount (part of the original appeal which hadn’t been determined). The High Court judge held that the £50,000 award was correct. Mrs Ilott then appealed that decision to the Court of Appeal, who increased the award to £163,000. It was that decision on the amount of the award which was appealed to the Supreme Court.
Despite the relatively narrow remit of the appeal, the decision has been eagerly awaited as it is the first time the 1975 Act has been considered by either the Supreme Court of the House of Lords before it.
So, does the judgment of the Supreme Court provide any clarity for charities around such cases?
The answer is both yes and no. These claims are always very fact-specific, and the 1975 Act itself does not provide any guidance as to the weight to be attached to the various factors to be considered.
Lady Hale lamented “the unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance”. She made it clear that each of the three outcomes which had been imposed at various stages of the litigation (i.e. (a) zero provision was reasonable, (b) £50,000 was an appropriate award, and (c) £163,000 was an appropriate award) were all perfectly valid conclusions which a judge hearing the case at first instance could have reached.
However, as this was an appeal, then unless there had been an error in law or principle by the first instance judge, it is not the job of the appellate court to substitute its own decision where there is a wide discretion as to the appropriate value judgment to be made. The upshot was that Mrs Ilott’s original award of £50,000 was reinstated.
There are two areas where I believe this decision is helpful.
- The case re-emphasises what had always been the orthodox position, that claims by independent adult children under the 1975 Act are notoriously difficult, and are unlikely to succeed without some other significant factor in addition to the mere parent/child relationship. In a passage which will be seized on by lawyers arguing against provision to adult children (this writer included) Lord Hughes made a significant statement. He was discussing whether a moral obligation on the part of a parent to provide for an independent adult child is required for a claim to succeed, and he said this: “There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J (in the case of Re Coventry) did not impose one. He meant no more, but no less, than that in the case of a claimant adult 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. That will be true of a number of cases. Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act.”
- The case also made it clear that where the testator has clearly expressed wishes that the particular beneficiary is not to benefit (as Mrs Jackson had done here), those wishes are of some weight and are not to be ignored – “they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors”.
Will the judgment prevent the anticipated flood of similar claims?
This judgment shows that if adult children are independent of their parent, and have been so for some time, then (even if they are in straitened circumstances like Mrs Ilott) such claims will remain very difficult.
That is not to say that these claims won’t be attempted, but I believe that the potential opening of the floodgates to such claims perhaps anticipated following the various stages of this litigation is unlikely to occur. The floodgates have now been wedged largely shut, and I imagine we will see more a trickle than a torrent of claims by adult children in the future. Charity defendants can perhaps afford to be a bit more robust in defending such claims.
Time will now tell as to whether the Law Commission looks further at these issues with a view to clarifying the 1975 Act, as Lady Hale bemoans it did not do the last time it had a chance in 2011.