Zenith CC&P Current Awareness

Ilott v Mitson: A storm in a Teacup?

18 October 2016

Nicola Phillipson TEP

With Ilott due to be heard in the Supreme Court on 12th December 2016, Nicola Phillipson considers the impact the case has had upon claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) and wonders whether the importance of the various decisions has in fact been overblown?

Background

The facts of Ilott are well known – Mrs Ilott was the only child of Mrs Jackson, from whom she had been estranged for 26 years, having left home at the age of 17.  Mrs Jackson died in 2004, bequeathing her net estate of around £486,000 to various animal charities.  Mrs Ilott was married with five children, was housed by a housing association, and dependent upon state benefits.  She brought a claim for financial provision under the Act.

The Various Decisions

This is a claim which has now been proceeding through the courts for over nine years, having been to the Court of Appeal twice, and gathering all manner of sensational headlines and press coverage along the way.  Here’s a brief re-cap.

(i) First Instance - DJ Million (May 2007) – held that the will did not make reasonable financial provision.  Mrs Ilott’s award was assessed at £50,000.

(ii) HC – Mrs Justice King (December 2009) – Mrs Ilott appealed on the quantum of the award and the charities cross appealed on the grounds that DJ Million was wrong to have made an award at all.  The charities’ appeal succeeded and therefore Mrs Ilott’s appeal was not heard.

(iii) CA (March 2011) – Mrs Ilott brought a second appeal, against the decision of King J.  Mrs Ilott succeeded, the decision of DJ Million to make an award was reinstated, and the case was remitted to the HC for Mrs Ilott’s outstanding quantum appeal.

(iv) HC: Mrs Justice Parker (March 2014) – Mrs Ilott’s appeal on quantum dismissed.

(v) CA (July 2015) – A second appeal on quantum.  DJ Million’s quantum assessment overturned and substituted with an Order that Mrs Ilott is to receive the purchase price of her home (£143,000) plus reasonable expenses of purchase, and an option to receive a capital sum of up to £20,000 (expressed in this way to preserve Mrs Ilott’s state benefits).

(vi) SC - The charities’ appeal from the CA quantum award is due to be heard 12th December 2016.

Comments

This case initially hit the headlines in March 2011 after the first Court of Appeal decision.  From reading the press coverage, it could be assumed that this case was groundbreaking; setting aside years of established law and giving the court the ability to re-write wills for the first time.  In fact, as all practitioners of IHA claims know, the case did nothing of the sort, the Act having made its way onto the statute books on 12th November 1975. 

All the CA actually did in 2011 was to say that the “value judgment” reached by DJ Million at FI as to whether or not the will made reasonable provision for Mrs Ilott was in fact a legitimate judgment which he was entitled to make.  He had applied the correct test, and asked himself the correct questions.  As such, his decision could not be interfered with, and should not have been set aside. 

It is however noted that in granting Mrs Ilott’s appeal the CA also said that the decision reached by King J, that it was reasonable in all of the circumstances that Mrs Ilott should receive nothing, was also a decision which was “meticulously reasoned and well within the ambit of decisions that were open to her and would not be vulnerable to the attentions of this court”.  To me, this is in fact the most interesting aspect of the 2011 decision; the explicit acknowledgment that two judges, faced with identical facts, can legitimately reach entirely opposing decisions.  Which again is something practitioners have long known; for IHA cases the outcome often does truly depend upon the Judge on the day.

The second CA decision in 2015 could be said to be useful in that, having decided to uphold Mrs Ilott’s appeal, the CA then assessed her award.  It therefore gives a rare opportunity to see how the CA exercise the discretion.  However, IHA cases are fact specific, and therefore whilst an insight into the CA reasoning is always interesting it is, on the whole, likely to be of limited assistance to practitioners assessing quantum in cases which do not involve one estranged adult child on benefits, against a charity, with an estate of almost half a million pounds. 

There are, however, some useful comments and reminders within the judgment.  Such as “to be within the 1975 Act, the award had to be for the appellant’s future maintenance, not for an immediate spending spree”, which is something I find applicants often forget.  It was also confirmed that an applicant is not to be penalised for living within her means, and there is an emphasis upon the fact that in a case like this, in order to balance the needs of the applicant and the testamentary wishes of the Deceased, “reasonable financial provision is made for maintenance only".  Finally, the provision of the capital sum of up to £20,000 as an option should be remembered as a useful tool when dealing with applicants who are dependent upon means tested benefits.

Conclusion

So how groundbreaking have the many cases of Ilott been? To my mind, not very.  But the cases have resulted in a lot of publicity, alerting the wider public to the possibility of bringing a claim for provision (more work is never a bad thing), and the CA have confirmed a few things which we already knew (which is always nice).  But what they have not done, in my opinion, is change the law.  So, on the basis of the cases so far, I would conclude that it has all been a bit of a storm in a teacup.  However, this could all change after the Supreme Court has delivered its judgment, so watch this space.

And finally

Once all of the judgments are read, and the facts digested, there are two sentences in the 2015 CA judgment which are truly remarkable

The value of the estate at the date of the trial was £486,000.  There has been little change in that amount since the date of the hearing before DJ Million.

Nine years, five contested hearings, and there has been no appreciable depreciation of the estate.  Perhaps the real lesson to be learnt from the Ilott cases is that if you are going to embark upon a decade of legal battle, it always pays to ensure that the winning side are acting pro bono.

Current Awareness

By the CC&P team